What is SQE1?
SQE1 is the first stage of the Solicitors Qualifying Examination — the single route to qualifying as a solicitor in England and Wales. It assesses your Functioning Legal Knowledge (FLK) across two papers, FLK1 and FLK2, entirely through single best answer multiple choice questions. You must pass SQE1 before you can attempt the skills-based SQE2. There is no coursework and no essay element: every mark comes from choosing the single best answer to a realistic legal scenario.
This page brings together the whole syllabus so you can revise, or simply orient yourself, without clicking between pages. Each subject below links out to its dedicated guide, its video lessons in the course, and exam-style practice. Always confirm the current number of questions, timings, pass mark, dates and fees on the official SRA SQE website, as these are set by the SRA and Kaplan and change from time to time.
FLK1
Business Law and Practice · Dispute Resolution · Contract · Tort · Legal System, Constitutional & EU Law · Legal Services & Professional Conduct
FLK2
Property Practice · Wills & Administration of Estates · Solicitors Accounts · Land Law · Trusts · Criminal Liability · Criminal Litigation
Functioning Legal Knowledge 1 (FLK1)
FLK1 · Subject 1 of 13
SQE1 Business Law and Practice
Business Law and Practice is one of the largest FLK1 subjects and covers the whole life of a business — from choosing a structure and forming a company, through directors' duties, financing and taxation, to insolvency. It rewards candidates who can apply the Companies Act 2006 and the Partnership Act 1890 to a realistic commercial scenario rather than simply recite rules.
How Business Law is examined
Expect single best answer questions that give you a company or partnership situation and ask what a director, shareholder or partner may lawfully do, what approval is needed, or the tax consequence. Procedural detail (resolutions, filing, approvals) and the default statutory rules are heavily tested.
How to revise it
- Learn the resolution thresholds cold — ordinary vs special, and when members' approval is needed (e.g. directors' loans, substantial property transactions).
- Know the Partnership Act 1890 defaults, which apply whenever there is no agreement.
- Be comfortable moving between income tax, corporation tax, CGT and VAT in a single scenario.
The 10 Business Law subtopics
Business structures & starting up
The first decision for any business is its legal structure — sole trader, partnership, LLP or company — because that choice fixes liability, tax treatment, formality and the ability to raise finance. SQE1 tests whether you can advise which vehicle suits a client's circumstances.
- Unincorporated vehicles (sole trader, general partnership) have no separate legal personality; the individuals are the business and bear unlimited personal liability for its debts.
- Incorporated vehicles (private/public companies, LLPs) have separate legal personality: they own assets, contract and sue in their own name, and the members' liability is limited.
- A company limited by shares limits a member's liability to any amount unpaid on their shares (s.3 CA 2006); a sole trader or general partner has no such shield.
- Private company (Ltd) cannot offer shares to the public; a public company (Plc) can, needs a s.761 trading certificate and £50,000 minimum allotted capital, one quarter paid up.
- Key selection factors: exposure to liability, tax efficiency, set-up and ongoing cost, privacy of accounts, ease of raising capital, and administrative burden.
- Formation formality rises with protection: a sole trader simply starts trading, whereas a company must register at Companies House and file annual accounts and a confirmation statement.
- The corporate veil is respected save in narrow circumstances (evasion of an existing obligation); mere use of a company to limit liability is legitimate.
Key cases & statutes
Salomon v Salomon & Co Ltd [1897] AC 22s.3 CA 2006s.4 CA 2006s.7 CA 2006s.761 CA 2006Partnership Act 1890Limited Liability Partnerships Act 2000Prest v Petrodel Resources Ltd [2013] UKSC 34Insolvency Act 1986
Where candidates lose marks
- Confusing separate legal personality (the entity is a distinct person) with limited liability (the cap on members' contribution) — they are related but distinct concepts.
- Assuming a sole trader or general partnership is a separate entity — it is not, so the individual's personal assets are exposed.
- Thinking the veil can be pierced simply because a company is small or one-person; Salomon and Prest keep piercing exceptional.
Company formation & constitution
A company is created by registration at Companies House and is governed by its constitution — principally its articles of association. SQE1 requires you to know how a company is formed and how its constitutional documents bind the company and its members.
- Formation requires delivery to the Registrar of a memorandum, an application (form IN01) stating proposed name, registered office, articles and statement of capital, and a statement of compliance (ss.9-13 CA 2006).
- The Registrar issues a certificate of incorporation which is conclusive evidence that the company exists and is duly registered (s.15 CA 2006).
- Under the 2006 Act the memorandum is now a short historical document; the operative constitution is the articles plus special resolutions and certain agreements (s.17 CA 2006).
- If no bespoke articles are registered, the relevant Model Articles apply by default (ss.19-20 CA 2006).
- The articles form a statutory contract between the company and each member, and between members, but only in respect of membership (constitutional) rights (s.33 CA 2006).
- Articles are amended by special resolution (75%) (s.21 CA 2006); provisions may be entrenched so they need more than a special resolution (s.22 CA 2006).
- Alteration must be bona fide for the benefit of the company as a whole; an amendment cannot be used simply to expropriate a minority.
Key cases & statutes
s.9 CA 2006s.15 CA 2006s.17 CA 2006s.19 CA 2006s.21 CA 2006s.22 CA 2006s.33 CA 2006Hickman v Kent or Romney Marsh Sheep-Breeders' Association [1915] 1 Ch 881Eley v Positive Government Security Life Assurance Co (1876)Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656
Where candidates lose marks
- Overstating the memorandum's modern role — since 2006 it merely records the subscribers' wish to form the company, it is not the substantive constitution.
- Forgetting that s.33 only enforces rights in a member's capacity as member (Eley), not rights given to someone in an outsider capacity such as solicitor.
- Using an ordinary resolution to amend articles — amendment needs a special resolution.
Directors: appointment, powers & duties
Directors run the company and owe it a codified set of general duties. SQE1 frequently tests the seven statutory duties in ss.171-177 CA 2006 and the members' controls over directors' appointment, self-dealing and removal.
- A private company needs at least one director and a public company at least two; every company must have at least one director who is a natural person aged 16 or over (ss.154-157 CA 2006).
- Directors include de jure, de facto and shadow directors (s.251); duties can extend to those who have not been validly appointed.
- The general duties are: act within powers (s.171), promote the success of the company for members' benefit having regard to s.172 factors, exercise independent judgment (s.173), exercise reasonable care, skill and diligence (s.174, dual objective/subjective test), avoid conflicts of interest (s.175), not accept benefits from third parties (s.176), and declare an interest in a proposed transaction (s.177).
- An interest in an existing transaction must be declared under s.182; the s.177 duty concerns proposed transactions before they are entered into.
- Certain transactions need member approval: substantial property transactions (s.190), loans to directors (s.197), and service contracts longer than two years (s.188).
- Breach may be authorised in advance (independent directors, ss.175/177) or ratified afterwards by ordinary resolution of members disregarding the director's own votes (s.239).
- Members may remove a director by ordinary resolution with special notice (28 days) under s.168, subject to any Bushell v Faith weighted-voting clause in the articles.
Key cases & statutes
ss.171-177 CA 2006s.182 CA 2006s.190 CA 2006s.197 CA 2006s.168 CA 2006s.239 CA 2006Re City Equitable Fire Insurance Co [1925] Ch 407Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134Bhullar v Bhullar [2003] EWCA Civ 424Bushell v Faith [1970] AC 1099
Where candidates lose marks
- Confusing s.177 (declare interest in a proposed transaction) with s.182 (existing transaction) — the trigger and timing differ.
- Forgetting that liability under s.175 is strict: Regal and Bhullar show honesty and lack of loss to the company are no defence to an unauthorised profit.
- Assuming removal under s.168 is by special resolution — it is an ordinary resolution but requires special notice, and can be defeated by weighted voting.
Debt finance & security
Companies raise debt finance by borrowing, usually giving security over their assets. SQE1 tests the difference between fixed and floating charges, registration requirements and the priority of competing security.
- Debt finance includes overdrafts, term loans and debentures; unlike equity it must be repaid and does not dilute ownership.
- A fixed charge attaches to a specific asset and restricts the company's dealings with it; a floating charge hovers over a class of assets (such as stock) until it crystallises.
- A floating charge crystallises on default, cessation of business, liquidation, or as provided in the debenture, fixing on the assets then held.
- Most company charges must be registered at Companies House within 21 days of creation (s.859A CA 2006).
- An unregistered charge is void against a liquidator, administrator and creditors, though the underlying debt remains payable (s.859H CA 2006).
- Priority generally runs by date of creation, but a later fixed charge can outrank an earlier floating charge over the same asset; whether a charge over book debts is fixed depends on control (Re Spectrum Plus).
- On insolvency, floating charge realisations rank behind fixed charges, insolvency expenses, preferential creditors and the ring-fenced prescribed part.
Key cases & statutes
s.859A CA 2006s.859H CA 2006Re Spectrum Plus Ltd [2005] UKHL 41s.40 IA 1986s.176A IA 1986s.245 IA 1986National Provincial Bank v Charnley [1924] 1 KB 431Re Yorkshire Woolcombers Association [1903] 2 Ch 284
Where candidates lose marks
- Missing the strict 21-day registration deadline — late registration requires a court order.
- Saying an unregistered charge makes the loan unenforceable; the debt survives, only the security is void against the office-holder and creditors.
- Labelling a charge over book debts as fixed without the requisite control over the proceeds (Spectrum).
Partnerships
A general partnership arises whenever two or more people carry on a business in common with a view of profit, often without any documentation. SQE1 tests the default rules of the Partnership Act 1890, partners' liability and how a partnership ends.
- A partnership exists where persons carry on a business in common with a view of profit (s.1 PA 1890); no writing or registration is required.
- Each partner is an agent of the firm and of the other partners for the business (s.5), so acts done in the usual course bind the firm.
- Partners are jointly liable for the firm's debts and obligations (s.9) and jointly and severally liable for wrongs committed in the ordinary course (ss.10-12).
- The s.24 default terms apply unless varied by agreement: equal share of profits and losses, no interest on capital, no salary, and no partner may be expelled by majority.
- Bringing in a new partner or changing the nature of the business requires unanimous consent (s.24(7)-(8)); ordinary matters are decided by majority.
- Partners owe each other fiduciary duties: to render accounts (s.28), account for private profits (s.29) and not to compete with the firm (s.30).
- A person leaving must give notice to existing customers and public notice in the Gazette to avoid continuing liability by holding out (ss.14, 36).
Key cases & statutes
s.1 Partnership Act 1890s.5 Partnership Act 1890s.9 Partnership Act 1890s.10 Partnership Act 1890s.14 Partnership Act 1890s.24 Partnership Act 1890ss.28-30 Partnership Act 1890s.35 Partnership Act 1890s.36 Partnership Act 1890s.44 Partnership Act 1890
Where candidates lose marks
- Assuming a written agreement exists — the s.24 defaults govern unless and to the extent the partners have agreed otherwise.
- Confusing liability under s.9 (joint) for debts with joint and several liability for wrongs (s.12).
- Overlooking the need for an outgoing partner to give both actual and Gazette notice (s.36) to cut off holding-out liability.
Limited liability partnerships
A limited liability partnership combines the flexibility of a partnership with the limited liability and separate personality of a company. SQE1 tests how an LLP is formed, how it is taxed and how it differs from both companies and general partnerships.
- An LLP is a body corporate with separate legal personality and its members enjoy limited liability (s.1 LLPA 2000).
- An LLP is incorporated by registering form LL IN01 at Companies House; it must have at least two members, of whom at least two are designated members responsible for filing.
- Despite being a body corporate, an LLP is tax transparent — it is taxed like a partnership, with members taxed on their share of profits rather than the LLP paying corporation tax.
- The relationship between members is governed by the LLP agreement; where there is none, the default provisions in the LLP Regulations 2001 apply.
- The 2001 default provisions mirror the Partnership Act: equal share of capital and profits, no entitlement to remuneration, and unanimity to change the business or admit a new member, regardless of capital contributed.
- Every member is an agent of the LLP (s.6 LLPA 2000), but a member is not liable merely by being a member; personal liability arises for their own negligence.
- An LLP must file annual accounts and a confirmation statement, so it lacks the privacy of a general partnership; withdrawals may be clawed back on insolvency (s.214A IA 1986).
Key cases & statutes
s.1 LLPA 2000s.2 LLPA 2000s.6 LLPA 2000Limited Liability Partnerships Regulations 2001s.214A IA 1986designated membersform LL IN01Companies Act 2006 (applied provisions)
Where candidates lose marks
- Thinking an LLP pays corporation tax like a company — it is tax transparent and taxed as a partnership.
- Assuming members automatically owe the CA 2006 directors' duties — their duties derive from the LLP agreement and general law, not ss.171-177.
- Forgetting the default equal profit share under the 2001 Regulations applies irrespective of unequal capital contributions.
Insolvency & administration
Insolvency law provides procedures for rescuing or winding up businesses and rules for unwinding transactions made in the run-up to failure. SQE1 tests the insolvency tests, the main corporate procedures, the order of priority and antecedent transaction claims.
- A company is insolvent if it cannot pay its debts as they fall due (cash-flow) or its liabilities exceed its assets (balance-sheet) under s.123 IA 1986.
- Liquidation may be a creditors' voluntary liquidation, a members' voluntary liquidation (solvent), or a compulsory winding up by the court (s.122 IA 1986).
- Administration under Schedule B1 aims, in order of priority, to rescue the company as a going concern, achieve a better result for creditors than winding up, or realise property for secured/preferential creditors (para 3).
- The statutory order of distribution is: fixed charge holders, liquidation/administration expenses, preferential creditors, the prescribed part, floating charge holders, unsecured creditors, interest, then shareholders.
- A liquidator or administrator may challenge a transaction at an undervalue (s.238), a preference (s.239, requiring a desire to prefer), an avoidable floating charge (s.245), and a transaction defrauding creditors (s.423).
- Relevant times run back from the onset of insolvency: two years for undervalues and connected-person preferences, six months for other preferences.
- Directors face personal liability for wrongful trading if they continued when they knew or ought to have known there was no reasonable prospect of avoiding insolvent liquidation (s.214), and for fraudulent trading (s.213).
Key cases & statutes
s.122 IA 1986s.123 IA 1986Schedule B1 IA 1986s.213 IA 1986s.214 IA 1986s.238 IA 1986s.239 IA 1986s.245 IA 1986s.423 IA 1986s.176A IA 1986 (prescribed part)
Where candidates lose marks
- Confusing wrongful trading (s.214, negligence-based, no dishonesty needed) with fraudulent trading (s.213, requires intent to defraud).
- Forgetting a preference under s.239 requires a subjective desire to prefer, which is presumed for connected persons.
- Mixing up the relevant time periods (two years versus six months) and applying the cash-flow test when the balance-sheet test is in issue.
Business & personal taxation
The choice of business vehicle drives its tax treatment, and SQE1 expects a working grasp of how income, gains and consumption are taxed for individuals, partnerships and companies. Rates change annually, so principles and the taxpayer matter more than transient figures.
- A sole trader and each individual partner pays income tax on trading profits and Class 2/4 National Insurance; the partnership itself is transparent and pays no tax.
- A company pays corporation tax on its income profits and chargeable gains; shareholders are then separately taxed on dividends they receive.
- Whether a receipt is income or capital turns on the badges of trade; income tax and corporation tax apply to income, capital gains tax (or corporation tax on gains) to disposals of assets.
- Capital gains tax is charged on the disposal of chargeable assets by individuals under the TCGA 1992, subject to the annual exempt amount and reliefs.
- Business Asset Disposal Relief reduces the CGT rate on qualifying disposals of business assets up to a lifetime limit (s.169H TCGA 1992).
- VAT is charged on taxable supplies by a registered business; registration is compulsory once turnover exceeds the threshold, and input tax may be recovered against output tax (VATA 1994).
- Rates, thresholds and allowances are set by the annual Finance Act, so an SQE candidate should reason from principle rather than memorise figures that change each year.
Key cases & statutes
Income Tax Act 2007ITTOIA 2005Corporation Tax Act 2009Corporation Tax Act 2010Taxation of Chargeable Gains Act 1992s.169H TCGA 1992 (Business Asset Disposal Relief)Value Added Tax Act 1994Finance Act (annual)
Where candidates lose marks
- Mixing up who bears the tax — the company pays corporation tax, but the shareholder pays on dividends and the partner pays income tax on their profit share.
- Memorising specific rates and thresholds that change with each Finance Act, rather than applying the underlying principles.
- Treating every disposal as attracting Business Asset Disposal Relief without checking the qualifying conditions and lifetime limit.
FLK1 · Subject 2 of 13
SQE1 Dispute Resolution
Dispute Resolution tests the civil litigation process end to end under the Civil Procedure Rules — from pre-action conduct and choosing a forum, through statements of case and case management, to trial, costs and enforcement. It is a procedure-heavy subject where the sequence and the rules matter.
How Dispute Resolution is examined
Questions typically place you at a point in the litigation timeline and ask what the next correct step is, which track applies, the costs consequence, or the effect of a Part 36 offer. Precise knowledge of the CPR and time limits is what separates candidates.
How to revise it
- Fix the litigation timeline in your head so you can place any question on it.
- Master Part 36 — its mechanics and, above all, its costs consequences.
- Know the disclosure rules and the categories of privilege.
The 10 Dispute Resolution subtopics
Analysing a claim & pre-action conduct
Before issuing any claim a solicitor must analyse its merits, check limitation and comply with the pre-action rules. SQE1 tests whether you can assess a cause of action and advise on the pre-action steps required by the CPR.
- Identify the cause of action, the correct parties and their capacity, the remedy sought and whether the claim is worth pursuing on the merits.
- Check limitation: six years for contract (s.5 LA 1980) and most torts (s.2), three years for personal injury (s.11), running from accrual or date of knowledge.
- Latent damage claims carry a three-year date-of-knowledge extension (s.14A) subject to a 15-year longstop (s.14B); the court has a discretion to disapply the PI limit (s.33).
- The Practice Direction on Pre-Action Conduct and any relevant Pre-Action Protocol require the parties to exchange information, a letter of claim and a reasoned response before proceedings.
- The pre-action stage requires the parties to consider ADR and to disclose key documents so the dispute can settle or narrow without litigation.
- Proceedings are 'brought' for limitation purposes when the claim form is issued by the court, not when it is later served.
- Non-compliance with a protocol is penalised through costs and interest sanctions or a stay, rather than by striking out the claim.
Key cases & statutes
s.2 Limitation Act 1980s.5 Limitation Act 1980s.11 Limitation Act 1980s.14A Limitation Act 1980s.14B Limitation Act 1980s.33 Limitation Act 1980s.35 Limitation Act 1980PD Pre-Action Conduct and ProtocolsCPR 16
Where candidates lose marks
- Timing limitation from the wrong date — it runs from accrual of the cause of action (or knowledge in PI), not from issue of proceedings.
- Confusing the date proceedings are 'brought' (issue) with the date of service; issuing stops limitation running.
- Assuming protocol breach strikes out a claim — the sanctions are costs, interest and stays, not dismissal.
Alternative dispute resolution
Litigation is only one way to resolve a dispute; the CPR and the courts actively encourage alternatives. SQE1 tests the main forms of ADR, their binding effect and the costs consequences of refusing to engage.
- The principal forms of ADR are negotiation, mediation, arbitration, adjudication, early neutral evaluation and ombudsman schemes, each with different cost, speed and formality.
- Mediation is a facilitated negotiation that is non-binding until a settlement agreement is signed; the mediator does not impose a decision.
- Arbitration under the Arbitration Act 1996 produces a binding award that is enforceable and subject only to limited rights of challenge or appeal.
- Where parties have agreed to arbitrate, the court will generally stay court proceedings brought in breach of that agreement (s.9 AA 1996).
- Following Churchill v Merthyr Tydfil the court may lawfully order parties to engage in ADR or stay proceedings for that purpose, provided it does not impair the right to a fair trial.
- An unreasonable refusal to engage in ADR can be penalised in costs under the court's discretion, and silence in the face of an invitation may itself be unreasonable (PGF II).
- The Halsey factors remain relevant to whether a refusal was reasonable, even though Halsey's suggestion that the court could not compel ADR has been superseded.
Key cases & statutes
Arbitration Act 1996s.9 Arbitration Act 1996Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288CPR 1.4CPR 44.2Dunnett v Railtrack plc [2002] EWCA Civ 302
Where candidates lose marks
- Citing Halsey for the proposition that a court cannot compel ADR — Churchill establishes the court can now order or stay for ADR.
- Confusing arbitration (binding award) with mediation (non-binding until agreement) when advising a client on outcomes.
- Overlooking that a failure even to respond to an ADR invitation may be treated as unreasonable (PGF II) and attract a costs sanction.
Starting proceedings & jurisdiction
Choosing the right court and validly serving the claim form are the gateway to litigation. SQE1 tests the allocation between the County Court and High Court, the difference between Part 7 and Part 8 claims, and the rules on service.
- Most money claims may start in the County Court; a claim must generally be started in the High Court only if its value exceeds £100,000 (or £50,000 for personal injury).
- The High Court comprises the King's Bench Division, the Chancery Division and the Business and Property Courts, chosen according to the subject matter.
- A Part 7 claim is the standard route for disputes of fact; a Part 8 claim is used where there is no substantial dispute of fact, such as a point of construction.
- Proceedings start when the court issues the claim form; the claimant must then serve it within four months where service is within the jurisdiction (six months outside) (CPR 7.5).
- Permitted methods of service include personal service, first-class post, leaving at a specified place, and, by agreement, fax or email (CPR 6).
- Service is treated as effected on the deemed date under CPR 6.14 (the second business day after the relevant step), which matters for calculating response deadlines.
- A company may be served at its registered office (s.1139 CA 2006) or in accordance with the CPR service provisions.
Key cases & statutes
CPR Part 7CPR Part 8CPR 6.3 (methods of service)CPR 6.14 (deemed service)CPR 7.5 (period for service)PD 7AHigh Court and County Courts Jurisdiction Order 1991s.1139 CA 2006
Where candidates lose marks
- Missing the strict four-month window to serve the claim form within the jurisdiction — an extension must usually be sought before it expires.
- Confusing the date of issue (which stops limitation) with the deemed date of service (which starts response deadlines).
- Using Part 8 for a claim that involves a substantial dispute of fact, when Part 7 is required.
Statements of case
Statements of case define the issues the court will decide. SQE1 tests the required content of particulars of claim, defence and counterclaim, the time limits for responding and the rules on amendment.
- The particulars of claim must set out a concise statement of the facts relied on and the remedy sought, with any interest claimed (CPR 16.4).
- A defendant may file an acknowledgment of service and then has 14 days from service of particulars to file a defence, or 28 days if an acknowledgment was filed (CPR 15).
- The defence must state which allegations are admitted, denied or not admitted, and must give reasons for each denial — a bare denial is insufficient (CPR 16.5).
- A defendant may bring a counterclaim against the claimant or an additional claim against a third party under Part 20.
- Every statement of case must be verified by a statement of truth (CPR 22); a false statement without honest belief may be contempt of court.
- A party may request further information about a statement of case under CPR 18 to clarify or give additional detail on a matter in dispute.
- Once a statement of case has been served, it may be amended only with the written consent of the other parties or the permission of the court (CPR 17).
Key cases & statutes
CPR 16 (statements of case)CPR 16.5 (defence: reasons for denial)CPR 15 (responding to a claim)CPR Part 20 (counterclaims and additional claims)CPR 17 (amendments)CPR 18 (further information)CPR 22 (statement of truth)CPR 12 (default judgment)
Where candidates lose marks
- Getting the defence deadline wrong — it is 14 days from particulars, extended to 28 days only where an acknowledgment of service is filed.
- Pleading a bare denial without reasons, contrary to CPR 16.5, which risks the allegation being taken as admitted.
- Forgetting that once served, a statement of case can only be amended by consent or the court's permission.
Case management & the tracks
After a defence is filed the court manages the case and allocates it to a track. SQE1 tests the allocation thresholds, the features of each track, and the court's approach to sanctions and relief.
- The overriding objective in CPR 1.1 requires cases to be dealt with justly and at proportionate cost, and the court manages cases actively to that end.
- The small claims track handles claims up to £10,000 (personal injury general damages up to £1,000, or £5,000 for RTA claims) with limited costs recovery.
- The fast track covers claims over £10,000 up to £25,000 where trial should last no more than one day, with fixed recoverable costs.
- The intermediate track, introduced in October 2023, covers less complex claims over £25,000 up to £100,000 with a trial of up to three days, no more than two expert witnesses per party giving oral evidence, and fixed recoverable costs by complexity band.
- The multi-track handles claims over £100,000 or those that are complex, and typically involves costs budgeting using Precedent H.
- Parties complete a directions questionnaire to assist allocation, and the court then gives directions to trial.
- Where a party fails to comply with a rule or order, relief from sanctions is assessed under CPR 3.9 applying the three-stage Denton test.
Key cases & statutes
CPR 1.1 (overriding objective)CPR 26 (allocation)CPR 28 (fast track)CPR 29 (multi-track)CPR 45 (fixed recoverable costs)CPR 3.9 (relief from sanctions)Denton v TH White Ltd [2014] EWCA Civ 906Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537
Where candidates lose marks
- Using outdated track thresholds and forgetting the intermediate track for claims over £25,000 up to £100,000.
- Misapplying Denton — the three stages are seriousness, reason for default, and all the circumstances including the need for compliance.
- Assuming full costs recovery on the small claims track, where costs shifting is very limited.
Interim applications & injunctions
Interim applications allow a party to obtain orders before trial, from summary judgment to injunctions. SQE1 tests the procedure for applications, the tests for summary judgment and strike out, and the principles governing interim injunctions.
- Interim applications are made on notice using an application notice (form N244) supported by evidence, usually a witness statement (CPR 23).
- Summary judgment may be given where a party has no real prospect of succeeding on the claim or defence and there is no other compelling reason for a trial (CPR 24).
- The court may strike out a statement of case that discloses no reasonable grounds, is an abuse of process, or breaches a rule or order (CPR 3.4).
- Default judgment may be entered where a defendant fails to file an acknowledgment of service or a defence in time (CPR 12).
- For without-notice applications the applicant owes a duty of full and frank disclosure of all material facts, including those adverse to its case.
- An interim injunction is governed by the American Cyanamid principles: is there a serious issue to be tried, would damages be an adequate remedy, and where does the balance of convenience lie.
- An applicant for an interim injunction must usually give a cross-undertaking in damages to compensate the respondent if the injunction proves to have been wrongly granted.
Key cases & statutes
CPR Part 23 (applications)CPR Part 24 (summary judgment)CPR 3.4 (strike out)CPR Part 25 (interim remedies)CPR Part 12 (default judgment)American Cyanamid Co v Ethicon Ltd [1975] AC 396s.37 Senior Courts Act 1981cross-undertaking in damages
Where candidates lose marks
- Misstating the summary judgment test — it is 'no real prospect of success' and no other compelling reason for trial.
- Overlooking the duty of full and frank disclosure on without-notice applications, breach of which can lead to the order being set aside.
- Forgetting the cross-undertaking in damages required as the price of an interim injunction.
Evidence & disclosure
Evidence and disclosure determine what material each party must reveal and can rely on at trial. SQE1 tests the scope of disclosure, the rules of privilege, and the control of witness and expert evidence.
- Standard disclosure requires a party to disclose the documents it relies on, those that adversely affect its own or another party's case, and those that support another party's case (CPR 31.6).
- A party must carry out a reasonable and proportionate search and verify its disclosure by a disclosure statement; the duty of disclosure is ongoing until proceedings end.
- In the Business and Property Courts, disclosure is governed by the extended regime in Practice Direction 57AD rather than standard disclosure.
- Legal advice privilege protects confidential lawyer-client communications for the purpose of legal advice; litigation privilege additionally protects communications whose dominant purpose is litigation in contemplation.
- Without prejudice communications made in a genuine attempt to settle are not disclosable to the court.
- Expert evidence requires the court's permission; the expert's overriding duty is to the court, and the court may direct a single joint expert (CPR 35).
- Hearsay evidence is admissible in civil proceedings subject to the notice requirements of the Civil Evidence Act 1995, and the standard of proof is the balance of probabilities.
Key cases & statutes
CPR 31 (disclosure and inspection)CPR 31.6 (standard disclosure)PD 57AD (disclosure in the B&PC)CPR 32 (witness evidence)PD 57AC (trial witness statements)CPR 35 (experts)Civil Evidence Act 1995 (hearsay)Three Rivers DC v Bank of England (No 6) [2004] UKHL 48
Where candidates lose marks
- Forgetting that standard disclosure includes documents adverse to your own client's case, not just helpful ones.
- Confusing legal advice privilege with litigation privilege — the latter needs litigation in contemplation as the dominant purpose.
- Treating expert evidence as available as of right; permission of the court is required and the expert's duty is to the court, not the instructing party.
Trial, judgment & costs
At trial the court hears the evidence, gives judgment and decides who pays the costs. SQE1 tests trial preparation, the general rule on costs, the bases of assessment and the special costs regimes such as QOCS.
- Trial preparation includes an agreed trial bundle, skeleton arguments, and ensuring witnesses and experts attend; the judge controls the timetable.
- The general rule is that the unsuccessful party pays the successful party's costs, but the court has a wide discretion and may reflect the parties' conduct and partial success (CPR 44.2).
- Costs are assessed on the standard basis (proportionate, with doubt resolved in favour of the paying party) or the indemnity basis (doubt resolved in favour of the receiving party, without a proportionality test) (CPR 44.3).
- Costs may be assessed summarily at the hearing (common in the fast track) or by detailed assessment later (CPR 47).
- In personal injury claims, Qualified One-Way Costs Shifting generally protects an unsuccessful claimant from paying the defendant's costs (CPR 44.13-16).
- The court may order interest on costs and on the judgment sum, and an approved costs budget will strongly influence the recoverable costs on the standard basis.
- The successful party's costs are subject to the indemnity principle — a party cannot recover more than it is liable to pay its own solicitor.
Key cases & statutes
CPR 44.2 (court's discretion as to costs)CPR 44.3 (bases of assessment)CPR 44.13-16 (QOCS)CPR Part 47 (detailed assessment)s.51 Senior Courts Act 1981standard basisindemnity basisindemnity principle
Where candidates lose marks
- Confusing the standard basis (doubt for the paying party, proportionality applies) with the indemnity basis (doubt for the receiving party, no proportionality test).
- Applying QOCS outside personal injury litigation, where it does not apply.
- Treating 'costs follow the event' as an absolute rule rather than the general rule subject to the court's discretion and conduct.
Part 36 offers & settlement
A Part 36 offer is a formal, self-contained settlement mechanism with powerful costs consequences designed to encourage settlement. SQE1 tests the requirements of a valid offer, the effect of acceptance, and the consequences of failing to beat one at trial.
- A Part 36 offer must comply with the formal requirements in CPR 36.5, including being in writing, stating it is made under Part 36 and specifying a relevant period of at least 21 days.
- If an offer is accepted within the relevant period, the claimant is generally entitled to costs up to the date of acceptance on the standard basis (CPR 36.13).
- If a claimant fails to obtain a judgment more advantageous than a defendant's offer, the claimant usually pays the defendant's costs from the end of the relevant period, with interest (CPR 36.17(3)).
- If a claimant obtains a judgment at least as advantageous as its own offer, it may receive indemnity costs, enhanced interest up to 10% above base rate, and an additional amount up to £75,000 (CPR 36.17(4)).
- The fact and terms of a Part 36 offer must not be communicated to the trial judge until all questions of liability and quantum have been decided.
- Part 36 is a self-contained procedural code, so ordinary contractual rules of offer and acceptance do not apply (Gibbon v Manchester CC).
- Settlement terms are commonly recorded in a Tomlin order, which stays the proceedings on agreed terms scheduled to the order while preserving a route to enforce them.
Key cases & statutes
CPR Part 36CPR 36.5 (form and content)CPR 36.13 (costs on acceptance)CPR 36.17(3) (defendant's offer)CPR 36.17(4) (claimant's offer consequences)Tomlin orderGibbon v Manchester City Council [2010] EWCA Civ 726relevant period
Where candidates lose marks
- Forgetting the enhanced consequences where a claimant beats its own offer — indemnity costs, up to 10% enhanced interest and the additional amount.
- Assuming common law offer-and-acceptance rules apply; Part 36 is a self-contained code and, for example, a counter-offer does not destroy an earlier Part 36 offer.
- Overlooking the requirement that the offer not be revealed to the trial judge until costs are being decided.
Enforcement of judgments
A judgment is only valuable if it can be enforced against the debtor's assets. SQE1 tests the main enforcement methods and how to select the right one based on what assets the debtor has.
- Before enforcing, the creditor may obtain information about the debtor's assets by an order to attend court for questioning (CPR 71).
- Taking control of goods allows an enforcement agent to seize and sell the debtor's goods under a writ of control (High Court) or warrant of control (County Court).
- A third party debt order freezes money owed to the debtor by a third party, such as a bank, and directs payment to the creditor (CPR 72).
- A charging order secures the judgment debt against the debtor's land or securities; it gives security only, and an order for sale is needed to realise it (CPR 73).
- An attachment of earnings order directs the debtor's employer to deduct sums from wages and pay them to the creditor.
- Insolvency routes — a statutory demand followed by bankruptcy or winding up — can be used where the debt exceeds the relevant threshold, but are not primarily enforcement of the judgment.
- The choice of court to enforce depends on the sum: County Court judgments of £600 or more may be transferred to the High Court for enforcement, and judgments of £5,000 or more must generally be enforced by taking control of goods in the High Court.
Key cases & statutes
CPR Part 70 (enforcement: general)CPR Part 71 (obtaining information from a debtor)CPR Part 72 (third party debt orders)CPR Part 73 (charging orders)Charging Orders Act 1979Tribunals, Courts and Enforcement Act 2007Taking Control of Goods Regulations 2013CPR Parts 83 and 84 (writs and warrants)
Where candidates lose marks
- Choosing an enforcement method without first establishing what assets the debtor actually has (via a CPR 71 examination).
- Treating a charging order as producing immediate payment — it only creates security, so an order for sale may be needed to realise the debt.
- Confusing a third party debt order (attaching money owed to the debtor) with taking control of goods (seizing the debtor's chattels).
FLK1 · Subject 3 of 13
SQE1 Contract
Contract underpins much of the SQE1 and the practice areas built on it. It covers formation, the content and status of terms, the vitiating factors that can unwind a contract, discharge and breach, and the remedies available — with the common law worked examples that SQE1 loves.
How Contract is examined
You'll be given a contractual dispute and asked whether a contract was formed, whether a term was incorporated or breached, what remedy applies, or how damages are measured. The single best answer will turn on applying a rule or leading case to the facts.
How to revise it
- Know the incorporation and construction rules for exclusion clauses, plus UCTA 1977 and the CRA 2015.
- Be precise on the difference between conditions, warranties and innominate terms — it drives the right to terminate.
- Learn the expectation measure of damages and the limits of causation, remoteness and mitigation.
The 10 Contract subtopics
Formation: offer & acceptance
Contract formation asks whether the parties reached an agreement supported by a matching offer and acceptance. SQE1 tests this constantly through short problem facts, so you must distinguish an offer from an invitation to treat and know exactly when acceptance takes effect.
- An offer is a statement of terms on which the offeror is prepared to be bound; an invitation to treat (shop displays, adverts, auction calls, tender requests) merely invites offers.
- Acceptance must be an unqualified assent to all terms (the 'mirror image' rule); a purported acceptance that adds or changes terms is a counter-offer that destroys the original offer.
- Acceptance must generally be communicated to and received by the offeror; silence cannot be imposed as acceptance.
- The postal rule makes acceptance effective when posted (if post is a reasonable method), but it does not apply to instantaneous communications, which take effect on receipt.
- An offer can be terminated by revocation (communicated before acceptance), rejection, counter-offer, lapse of time, or death.
- Revocation is effective only when it actually reaches the offeree, and may be communicated by a reliable third party.
- A unilateral offer (e.g. a reward) is accepted by full performance and generally cannot be revoked once performance has begun.
Key cases & statutes
Carlill v Carbolic Smoke Ball Co [1893]Pharmaceutical Society v Boots [1953]Partridge v Crittenden [1968]Hyde v Wrench (1840)Adams v Lindsell (1818)Entores v Miles Far East [1955]Byrne v Van Tienhoven (1880)Felthouse v Bindley (1862)Dickinson v Dodds (1876)Brinkibon v Stahag Stahl [1983]
Where candidates lose marks
- Treating an advertisement or shop display as an offer rather than an invitation to treat.
- Applying the postal rule to email, phone or fax, where receipt (not sending) governs.
- Assuming a counter-offer keeps the original offer open — it terminates it.
Consideration & intention
For a promise to be enforceable there must be consideration and an intention to create legal relations. These doctrines decide which bargains the law will support and are frequently tested through part-payment of debt and existing-duty scenarios.
- Consideration must be sufficient (of some recognised value) but need not be adequate (need not match the other side's promise).
- Past consideration is not good consideration, subject to the exception where the act was done at the promisor's request and payment was implied.
- Consideration must move from the promisee, though it need not move to the promisor.
- Performance of an existing contractual duty is not usually good consideration, but conferring a practical benefit or avoiding a disbenefit can be (Williams v Roffey) — though this practical-benefit reasoning does not extend to part-payment of a debt, which remains governed by Foakes v Beer (Re Selectmove; MWB v Rock Advertising).
- Part payment of a debt does not discharge the whole debt (the rule in Pinnel's Case, affirmed in Foakes v Beer).
- Promissory estoppel can suspend or extinguish strict legal rights where a clear promise was relied on, but it is a shield not a sword.
- Agreements are presumed intended to be legally binding in commercial contexts and presumed not to be in social/domestic contexts, each presumption being rebuttable.
Key cases & statutes
Currie v Misa (1875)Chappell v Nestle [1960]Re McArdle [1951]Stilk v Myrick (1809)Williams v Roffey Bros [1991]Foakes v Beer (1884)Pinnel's Case (1602)Central London Property Trust v High Trees House [1947]Balfour v Balfour [1919]Merritt v Merritt [1970]
Where candidates lose marks
- Forgetting the practical-benefit exception in Williams v Roffey for existing-duty promises.
- Treating promissory estoppel as creating a fresh cause of action rather than defending against strict enforcement.
- Overlooking that domestic-context intention can be rebutted where parties are separating or dealing at arm's length.
Contract terms & their status
Once a contract exists you must identify its terms, whether they were incorporated, and how important each term is. Classifying a term as a condition, warranty or innominate term determines the remedies available for its breach.
- Distinguish terms (part of the contract) from mere representations (inducements) using factors such as importance, timing, and relative expertise.
- Terms may be incorporated by signature, by reasonable notice given before or at the time of contracting, or by a consistent course of dealing.
- Terms may be express or implied — implied by fact (business efficacy/officious bystander), by custom, or by statute.
- The Sale of Goods Act 1979 implies terms as to title, description and satisfactory quality into non-consumer sales of goods (business-to-business and private sales alike); the Consumer Rights Act 2015 governs trader-to-consumer contracts.
- A condition is a major term whose breach allows termination and damages; a warranty is a minor term giving damages only.
- An innominate term is classified by the effect of the breach: termination is available only if the breach deprives the innocent party of substantially the whole benefit.
- A signed document generally binds the signer to its terms even if unread (subject to misrepresentation and unfair-terms controls).
Key cases & statutes
L'Estrange v Graucob [1934]Poussard v Spiers (1876)Bettini v Gye (1876)Hong Kong Fir Shipping v Kawasaki [1962]The Moorcock (1889)ss.12-15 Sale of Goods Act 1979ss.9-11 Consumer Rights Act 2015Oscar Chess v Williams [1957]
Where candidates lose marks
- Forcing every term into the condition/warranty dichotomy and ignoring the innominate-term approach.
- Applying the Sale of Goods Act 1979 to a consumer contract that is now governed by the Consumer Rights Act 2015.
- Treating a statement as a term when it is only a representation (giving misrepresentation remedies, not breach).
Exclusion clauses & unfair terms
Exclusion and limitation clauses attempt to cut down liability, but they must be incorporated, correctly construed, and pass statutory controls. SQE1 expects you to route consumer contracts through the Consumer Rights Act 2015 and non-consumer contracts through UCTA 1977.
- The clause must first be incorporated by signature, reasonable notice, or course of dealing; unusual or onerous clauses require greater notice.
- Ambiguous exclusion clauses are construed narrowly against the party relying on them (contra proferentem).
- Under UCTA 1977, liability for death or personal injury caused by negligence cannot be excluded at all (s.2(1)); other negligence loss can be excluded only if reasonable (s.2(2)).
- UCTA's reasonableness test is judged at the time the contract was made, considering bargaining strength, inducements, and the parties' knowledge.
- In consumer contracts the Consumer Rights Act 2015 applies: a term is unenforceable if unfair (contrary to good faith and causing significant imbalance), and the key statutory quality/description rights cannot be excluded.
- The CRA transparency requirement and the indicative 'grey list' of potentially unfair terms in Schedule 2 must be checked.
- Notice of the clause must be given before or at the time of contracting, not afterwards.
Key cases & statutes
s.2 Unfair Contract Terms Act 1977s.11 Unfair Contract Terms Act 1977s.62 Consumer Rights Act 2015s.65 Consumer Rights Act 2015Thornton v Shoe Lane Parking [1971]Interfoto v Stiletto [1989]Canada Steamship Lines v The King [1952]L'Estrange v Graucob [1934]
Where candidates lose marks
- Applying UCTA 1977 to a consumer contract, which is now governed by the Consumer Rights Act 2015.
- Thinking liability for death or personal injury from negligence can be excluded if reasonable — it cannot be excluded at all.
- Overlooking that onerous or unusual clauses need specially prominent notice to be incorporated.
Misrepresentation
Misrepresentation is an untrue statement of fact or law that induces the other party to contract. It renders the contract voidable and can give rise to damages, with the measure depending on which type of misrepresentation is established.
- The claimant must show a false statement of fact or law that induced them to enter the contract (mere opinion, sales puff, or future intention usually will not suffice).
- Fraudulent misrepresentation requires a statement made knowingly, without belief in its truth, or recklessly (Derry v Peek).
- Under s.2(1) Misrepresentation Act 1967 the representor is liable in damages unless they prove reasonable grounds to believe, and belief that, the statement was true — reversing the burden of proof.
- Negligent misstatement at common law under Hedley Byrne requires a special relationship and assumption of responsibility.
- The main remedy is rescission (setting the contract aside), available for all types of misrepresentation.
- Rescission is barred by affirmation, lapse of time, third-party rights, or impossibility of restitution; s.2(2) allows damages in lieu of rescission for non-fraudulent misrepresentation.
- Silence is generally not a misrepresentation, but exceptions include half-truths, changed circumstances, and contracts of utmost good faith.
Key cases & statutes
s.2(1) Misrepresentation Act 1967s.2(2) Misrepresentation Act 1967Derry v Peek (1889)Hedley Byrne v Heller [1964]Redgrave v Hurd (1881)With v O'Flanagan [1936]Royscot Trust v Rogerson [1991]Smith v Land & House Property (1884)
Where candidates lose marks
- Treating statements of opinion or future intention as actionable statements of fact.
- Forgetting that s.2(1) reverses the burden of proof onto the representor.
- Missing a bar to rescission (affirmation, lapse of time, or inability to make restitution).
Duress, undue influence & mistake
Duress, undue influence and mistake are vitiating factors that can make a contract void or voidable where genuine consent was absent. They are tested on facts involving improper pressure, relationships of trust, or fundamental errors.
- Duress to the person, goods, or economic interests requires illegitimate pressure that was a significant cause leaving the victim no practical choice.
- Lawful-act duress is exceptional and requires bad faith or unconscionable exploitation (Times Travel).
- Actual undue influence is proved by overt improper pressure; presumed undue influence arises from a relationship of trust and confidence plus a transaction calling for explanation.
- A third party (e.g. a bank) may be fixed with notice of undue influence and must take reasonable steps, such as ensuring independent advice (Etridge).
- Common mistake (both parties share a fundamental false assumption) may void the contract only where the subject matter or a fundamental quality is affected.
- Unilateral mistake as to terms or identity can void a contract, especially in face-to-face versus written dealings.
- The remedy for undue influence and duress is rescission, subject to the usual bars.
Key cases & statutes
Barton v Armstrong [1976]Pao On v Lau Yiu Long [1980]Universe Tankships v ITWF (The Universe Sentinel) [1983]Pakistan International Airline v Times Travel [2021]Royal Bank of Scotland v Etridge (No 2) [2001]Bell v Lever Brothers [1932]Great Peace Shipping v Tsavliris [2002]Cundy v Lindsay (1878)
Where candidates lose marks
- Forgetting that economic duress needs illegitimate pressure and the absence of any practical alternative.
- Assuming a relationship of trust alone proves undue influence without a transaction calling for explanation.
- Overstating common mistake, which is narrow and rarely voids a contract merely because it is a bad bargain.
Discharge of contract
Discharge asks how contractual obligations come to an end. The main routes are performance, agreement, and frustration, and the entire-obligations rule and the doctrine of frustration are common SQE1 flashpoints.
- Discharge by performance normally requires complete and precise performance (the entire obligations rule).
- Exceptions to entire obligations include substantial performance, severable obligations, wrongful prevention by the other party, and acceptance of partial performance.
- Discharge by agreement requires fresh consideration or a deed unless obligations remain outstanding on both sides.
- Frustration discharges a contract where an unforeseen event makes performance impossible, illegal, or radically different, without either party's fault.
- Frustration does not apply to mere hardship, bad bargains, self-induced events, or risks the contract already allocated.
- The Law Reform (Frustrated Contracts) Act 1943 allows recovery of money paid, retention for expenses incurred, and payment for valuable benefits conferred before frustration.
- A radical change in obligation (Davis Contractors) is the modern test, replacing older implied-term reasoning.
Key cases & statutes
Cutter v Powell (1795)Hoenig v Isaacs [1952]Sumpter v Hedges [1898]Taylor v Caldwell (1863)Krell v Henry [1903]Davis Contractors v Fareham UDC [1956]Maritime National Fish v Ocean Trawlers [1935]Law Reform (Frustrated Contracts) Act 1943
Where candidates lose marks
- Claiming frustration for events that were foreseeable or that merely make performance more expensive.
- Missing that self-induced frustration cannot be relied upon by the party at fault.
- Overlooking the harshness of the entire obligations rule and the substantial-performance exception.
Breach & termination
Breach occurs when a party fails to perform an obligation, and only some breaches allow the innocent party to terminate. Distinguishing repudiatory and anticipatory breach, and the choice to affirm or terminate, is central to the topic.
- A breach is repudiatory where it is a breach of condition, a sufficiently serious breach of an innominate term, or a renunciation of the contract.
- Anticipatory breach arises where a party indicates before performance is due that it will not perform, allowing the innocent party to sue at once.
- Faced with a repudiatory breach the innocent party may either affirm the contract (keeping it alive for both) or accept the repudiation and terminate.
- Termination must be communicated, though in limited cases conduct can suffice (The Santa Clara).
- On affirmation the innocent party loses the right to terminate for that breach and remains bound to perform.
- A party who terminates for a breach that was not in fact repudiatory itself commits a wrongful repudiation.
- In some circumstances the innocent party can perform and claim the price rather than mitigate (White & Carter), subject to a legitimate interest.
Key cases & statutes
Hochster v De La Tour (1853)White & Carter (Councils) v McGregor [1962]Hong Kong Fir Shipping v Kawasaki [1962]Photo Production v Securicor [1980]Vitol v Norelf (The Santa Clara) [1996]
Where candidates lose marks
- Purporting to terminate for a breach of warranty, which only gives damages, and thereby repudiating oneself.
- Forgetting that acceptance of a repudiation must generally be communicated to the party in breach.
- Assuming a party can terminate after affirming — affirmation is an irrevocable election.
Remedies & damages
The primary remedy for breach is damages to put the claimant in the position they would have been in had the contract been performed. You must handle causation, remoteness, mitigation, and the boundary between liquidated damages and unenforceable penalties.
- Expectation loss protects the claimant's performance interest; reliance loss compensates wasted expenditure where expectation loss is hard to prove.
- Losses must be caused by the breach and not too remote — recoverable if arising naturally or within the parties' reasonable contemplation (Hadley v Baxendale's two limbs).
- The claimant must take reasonable steps to mitigate loss and cannot recover for avoidable loss.
- Damages for defective performance are usually the cost of cure, but may be limited to loss of amenity where cure is wholly disproportionate (Ruxley).
- Damages for distress are generally not recoverable except where a major object of the contract was enjoyment or peace of mind.
- An agreed-damages clause is enforceable unless it is a penalty — the test is whether it imposes a detriment out of proportion to any legitimate interest (Cavendish/ParkingEye).
- Equitable remedies (specific performance, injunction) are discretionary and unavailable where damages are adequate or for personal-service contracts.
Key cases & statutes
Robinson v Harman (1848)Hadley v Baxendale (1854)Victoria Laundry v Newman Industries [1949]Transfield Shipping v Mercator (The Achilleas) [2008]British Westinghouse v Underground Electric Railways [1912]Ruxley Electronics v Forsyth [1996]Cavendish Square Holding v Makdessi; ParkingEye v Beavis [2015]Addis v Gramophone [1909]
Where candidates lose marks
- Applying the old 'genuine pre-estimate' penalty test instead of the legitimate-interest/proportionality test.
- Confusing the two limbs of remoteness or treating unusual losses as recoverable without notice.
- Forgetting the duty to mitigate and the discretionary nature of specific performance.
Third party rights
Privity holds that only parties to a contract can enforce it, but the Contracts (Rights of Third Parties) Act 1999 created a major statutory route for third parties to sue. SQE1 tests both the doctrine and the Act's two-limb test.
- At common law a third party cannot sue on a contract to which they are not a party, even if it was made for their benefit.
- Under s.1 of the 1999 Act a third party can enforce a term if the contract expressly says so, or if the term purports to confer a benefit on them and there is no contrary intention.
- The third party must be expressly identified by name, class, or description, though need not exist at the time of contracting.
- Under s.2 the parties cannot vary or rescind the term to the third party's detriment once the third party has relied on it or accepted it, unless the contract reserves that right.
- Under s.3 the promisor can raise against the third party any defence arising from the contract that would have been available against the promisee.
- Common-law exceptions to privity include agency, trusts of a promise, assignment, and collateral contracts.
- The promisee retains their own right to sue, and specific performance may be ordered for the third party's benefit (Beswick v Beswick).
Key cases & statutes
Dunlop Pneumatic Tyre v Selfridge [1915]Tweddle v Atkinson (1861)s.1 Contracts (Rights of Third Parties) Act 1999s.2 Contracts (Rights of Third Parties) Act 1999s.3 Contracts (Rights of Third Parties) Act 1999Beswick v Beswick [1968]s.56 Law of Property Act 1925
Where candidates lose marks
- Forgetting the second limb of s.1 requires the term to purport to confer a benefit, rebuttable by contrary intention.
- Assuming the parties can always vary the contract after a third-party right has crystallised under s.2.
- Overlooking that the promisor keeps its contractual defences against the third party under s.3.
FLK1 · Subject 4 of 13
SQE1 Tort
Tort on SQE1 is dominated by negligence — duty, breach, causation, remoteness and defences — alongside the other torts of occupiers' liability, nuisance, Rylands v Fletcher and vicarious liability. It is a case-driven subject where the leading authorities are frequently the key to the answer.
How Tort is examined
Questions present an accident or loss and ask whether a duty was owed, whether it was breached, whether the damage is recoverable, or which defence applies. Psychiatric and pure economic loss are common trap areas.
How to revise it
- Keep the negligence elements in strict order and apply them one at a time.
- Learn the special rules for psychiatric injury (primary vs secondary victims) and pure economic loss.
- Know the tests for vicarious liability and the recognised defences.
The 9 Tort subtopics
Negligence: duty of care
The duty of care is the first element of negligence and asks whether the defendant owed the claimant a legal obligation to take reasonable care. SQE1 expects you to apply the modern incremental approach rather than mechanically running the Caparo test.
- In established categories (e.g. road users, doctor and patient, manufacturer and consumer) a duty is assumed and need not be re-argued.
- For novel situations the court reasons incrementally by analogy, and where guidance is needed applies foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty (Caparo).
- Robinson confirmed Caparo is not a universal test to be applied in every case; established duties come first.
- There is generally no duty for pure omissions or to prevent third parties causing harm, subject to exceptions (assumption of responsibility, control, creating the danger).
- Public bodies are analysed on ordinary negligence principles (Robinson), not a blanket policy immunity: they are generally not liable for a mere failure to protect a claimant from the acts of third parties (Hill, Michael), absent an assumption of responsibility or a recognised exception.
- Manufacturers owe a duty to the ultimate consumer of their products (Donoghue v Stevenson).
- A duty of care can arise from an assumption of responsibility toward a specific claimant.
Key cases & statutes
Donoghue v Stevenson [1932]Caparo Industries v Dickman [1990]Robinson v Chief Constable of West Yorkshire [2018]Home Office v Dorset Yacht Co [1970]Hill v Chief Constable of West Yorkshire [1989]Michael v Chief Constable of South Wales [2015]
Where candidates lose marks
- Running the full Caparo three-stage test where an established duty category already governs.
- Assuming liability for omissions or for the acts of third parties without an applicable exception.
- Treating public bodies as owing the same duties as private defendants.
Breach of duty
Breach of duty asks whether the defendant fell below the standard of a reasonable person in their position. It is a two-stage inquiry: set the required standard, then decide whether the defendant met it on the facts.
- The standard is objective — that of a reasonable person doing the relevant activity — and does not take account of the defendant's inexperience (Nettleship v Weston).
- Professionals are judged by the standard of a reasonable member of their profession (Bolam), provided the practice withstands logical scrutiny (Bolitho).
- Children are judged against a reasonable child of the same age.
- Factors relevant to breach include the likelihood of harm, the seriousness of potential injury, the cost and practicability of precautions, and the social utility of the conduct.
- A defendant need not guard against every foreseeable risk, only take reasonable precautions (Bolton v Stone).
- Greater precautions are required where the claimant is especially vulnerable (Paris v Stepney) or the harm is grave.
- For consent to medical treatment the standard is disclosure of material risks judged from the patient's perspective (Montgomery), not Bolam.
Key cases & statutes
Blyth v Birmingham Waterworks (1856)Nettleship v Weston [1971]Bolam v Friern Hospital Management Committee [1957]Bolitho v City & Hackney HA [1998]Bolton v Stone [1951]Paris v Stepney Borough Council [1951]Watt v Hertfordshire County Council [1954]Montgomery v Lanarkshire Health Board [2015]
Where candidates lose marks
- Lowering the standard to reflect the defendant's inexperience — the standard is objective.
- Applying Bolam to the disclosure of risks for consent, which is now governed by Montgomery.
- Ignoring the balancing of risk factors, including the social utility of the defendant's activity.
Causation & remoteness
Causation and remoteness connect the breach to the claimant's damage. The claimant must prove the breach caused the loss in fact and in law, and that the damage was not too remote.
- Factual causation normally uses the 'but for' test: would the harm have occurred but for the breach (Barnett)?
- Where 'but for' fails with multiple causes, a defendant who materially contributed to the harm may be liable (Bonnington Castings v Wardlaw); material contribution to the risk suffices only in limited cases such as industrial disease (McGhee, Fairchild).
- Legal causation can be broken by a new intervening act (novus actus) by a third party, the claimant, or a natural event that is unforeseeable or unreasonable.
- Remoteness limits recovery to damage of a reasonably foreseeable type (The Wagon Mound).
- It is enough that the type of harm is foreseeable, even if its precise manner or extent is not (Hughes v Lord Advocate).
- Under the thin-skull (egg-shell) rule the defendant takes the victim as found and is liable for the full extent of injury (Smith v Leech Brain).
- Fairchild and Chester show the courts will occasionally modify strict causation to avoid injustice.
Key cases & statutes
Barnett v Chelsea & Kensington HMC [1969]The Wagon Mound (No 1) [1961]Hughes v Lord Advocate [1963]Smith v Leech Brain [1962]Bonnington Castings v Wardlaw [1956]McGhee v National Coal Board [1973]Fairchild v Glenhaven Funeral Services [2002]Chester v Afshar [2004]
Where candidates lose marks
- Applying 'but for' rigidly where there are multiple sufficient or cumulative causes.
- Requiring the precise extent or manner of harm to be foreseeable, when only the type must be.
- Treating a foreseeable or reasonable intervening act as breaking the chain of causation.
Psychiatric & economic loss
Psychiatric injury and pure economic loss are areas where the courts restrict the ordinary duty of care through control mechanisms. You must classify the claimant and the loss correctly to know whether a duty exists.
- Only a recognised psychiatric illness is actionable — mere grief, distress or anxiety is not.
- A primary victim (in the zone of physical danger) can recover if physical injury was foreseeable, even if only psychiatric harm results (Page v Smith).
- A secondary victim must satisfy the Alcock control mechanisms: close ties of love and affection, proximity in time and space to the event or its immediate aftermath, and perception by their own unaided senses.
- Following Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, a secondary victim must also have witnessed an external, accident-like event; secondary-victim claims arising from clinical negligence (where the injury manifests later, away from any accident) will generally now fail.
- Pure economic loss (financial loss not consequent on physical damage to the claimant's person or property) is generally irrecoverable in negligence.
- An exception exists for negligent misstatement where there is a special relationship and an assumption of responsibility (Hedley Byrne).
- Auditors and other advisers owe a duty only to those for whose benefit and purpose the statement was made (Caparo).
- Loss consequent on physical damage (e.g. lost profit from damaged machinery) is recoverable, but purely economic loss beyond it is not (Spartan Steel).
Key cases & statutes
Alcock v Chief Constable of South Yorkshire [1992]Paul v Royal Wolverhampton NHS Trust [2024]Page v Smith [1996]White v Chief Constable of South Yorkshire [1999]Hedley Byrne v Heller [1964]Caparo Industries v Dickman [1990]Spartan Steel & Alloys v Martin [1973]Henderson v Merrett Syndicates [1995]
Where candidates lose marks
- Forgetting all the Alcock control mechanisms when the claimant is a secondary victim.
- Assuming a secondary-victim claim can arise from clinical/medical negligence — Paul v Royal Wolverhampton now generally excludes these.
- Failing to distinguish pure economic loss from economic loss consequent on physical damage.
- Assuming any negligent statement gives a remedy without a special relationship and reliance.
Employers' & vicarious liability
This topic covers an employer's personal non-delegable duties to employees and the separate doctrine of vicarious liability, by which one party is held strictly liable for another's tort. Both are heavily tested through workplace and abuse scenarios.
- An employer owes a personal, non-delegable duty to provide competent staff, adequate equipment, a safe place of work, and a safe system of work (Wilsons & Clyde Coal).
- Vicarious liability requires (1) a relationship of employment or one akin to it, and (2) a tort sufficiently closely connected to that relationship.
- Stage one can extend beyond employees to relationships akin to employment, but not to genuinely independent contractors (Barclays Bank).
- The close-connection test asks whether the wrongful conduct was so connected with the employee's authorised acts that it is fair to impose liability (Mohamud, as clarified in Morrison).
- An employer is not liable where the employee was on a 'frolic of their own' outside the course of employment.
- The Catholic Child Welfare and Cox cases confirm the two-stage modern approach and its extension to non-employees in akin-to-employment relationships.
- Vicarious liability is strict — the employer's own fault need not be shown.
Key cases & statutes
Wilsons & Clyde Coal v English [1938]Lister v Hesley Hall [2001]Various Claimants v Catholic Child Welfare Society [2012]Mohamud v WM Morrison Supermarkets [2016]WM Morrison Supermarkets v Various Claimants [2020]Barclays Bank v Various Claimants [2020]Cox v Ministry of Justice [2016]
Where candidates lose marks
- Imposing vicarious liability for the acts of a genuinely independent contractor.
- Applying the close-connection test too broadly after Morrison narrowed Mohamud.
- Confusing the employer's personal non-delegable duty with vicarious liability for another's tort.
Occupiers' liability
Occupiers' liability governs the duty owed by an occupier of premises to those who come onto them. Two statutes apply: the 1957 Act for lawful visitors and the 1984 Act for trespassers.
- Under the Occupiers' Liability Act 1957 an occupier owes visitors a common duty to take reasonable care to keep them reasonably safe for the purposes for which they are permitted to be there.
- An occupier is anyone with a sufficient degree of control over the premises (Wheat v Lacon).
- A higher standard applies to child visitors, who may be attracted by allurements (Glasgow Corporation v Taylor, Jolley v Sutton).
- An occupier may discharge the duty by adequate warning, and expects skilled visitors to guard against risks ordinary to their trade (Roles v Nathan).
- An occupier is generally not liable for the faulty work of an independent contractor if it was reasonable to entrust the work and reasonable checks were made (s.2(4)(b)).
- The Occupiers' Liability Act 1984 imposes a duty to trespassers only where the occupier knows of the danger and the trespasser, knows the trespasser may come near it, and the risk is one against which protection may reasonably be expected.
- There is no duty in respect of obvious risks or risks the claimant chose to run (Tomlinson v Congleton).
Key cases & statutes
s.2 Occupiers' Liability Act 1957s.1 Occupiers' Liability Act 1984Wheat v E Lacon & Co [1966]Roles v Nathan [1963]Glasgow Corporation v Taylor [1922]Jolley v Sutton LBC [2000]Tomlinson v Congleton Borough Council [2003]
Where candidates lose marks
- Applying the 1957 Act to a trespasser, who is instead covered by the 1984 Act.
- Imposing a duty under the 1984 Act for obvious risks or where the danger is not due to the state of the premises.
- Forgetting the higher standard owed to children and the concept of allurement.
Nuisance & Rylands v Fletcher
Private nuisance protects the use and enjoyment of land, and the rule in Rylands v Fletcher imposes liability for the escape of dangerous things from land. These land-based torts require a proprietary interest and turn on reasonableness and foreseeability.
- Private nuisance is an unlawful, indirect and continuous interference with a person's use or enjoyment of land.
- Reasonableness is judged by factors including locality, duration, sensitivity of the claimant, and any malice (St Helen's Smelting, Sturges v Bridgman).
- Only a claimant with a proprietary or possessory interest in the affected land can sue (Hunter v Canary Wharf).
- Coming to the nuisance is not a defence, but statutory authority and (rarely) prescription may be.
- The rule in Rylands v Fletcher requires the defendant to bring onto land and accumulate a thing likely to do mischief if it escapes, in a non-natural use of land.
- There must be an escape from the land and the type of damage must be reasonably foreseeable (Cambridge Water).
- Rylands is now treated as a sub-species of nuisance and non-natural use means an extraordinary and unusual use (Transco).
Key cases & statutes
Rylands v Fletcher (1868)St Helen's Smelting Co v Tipping (1865)Hunter v Canary Wharf [1997]Sturges v Bridgman (1879)Miller v Jackson [1977]Cambridge Water v Eastern Counties Leather [1994]Transco v Stockport MBC [2004]Coventry v Lawrence [2014]
Where candidates lose marks
- Allowing a claimant with no proprietary interest in the land to sue in private nuisance.
- Treating 'coming to the nuisance' as a defence — it is not.
- Forgetting that Rylands requires a non-natural use and foreseeability of the type of damage.
Defences
Defences can defeat or reduce a claim in tort. The most examined are contributory negligence, consent (volenti), and illegality, each with a distinct effect on liability and damages.
- Contributory negligence under the Law Reform (Contributory Negligence) Act 1945 reduces damages to the extent that is just and equitable, but does not bar the claim.
- The claimant's fault must have contributed to the damage suffered, not necessarily to the accident itself (Sayers v Harlow, seatbelt cases).
- Volenti non fit injuria (voluntary assumption of risk) is a complete defence requiring full knowledge of the risk and free, genuine agreement to accept it.
- Volenti rarely succeeds against employees or rescuers, and s.149 Road Traffic Act 1988 prevents its use against motor passengers.
- Illegality (ex turpi causa) may bar a claim where allowing it would be contrary to public policy, applying the Patel v Mirza factors.
- Consent can negate liability for what would otherwise be a trespass to the person.
- Statutory limitation periods (generally three years for personal injury, six years for other torts) can extinguish an otherwise valid claim.
Key cases & statutes
s.1 Law Reform (Contributory Negligence) Act 1945Sayers v Harlow UDC [1958]ICI v Shatwell [1965]Smith v Baker & Sons [1891]Patel v Mirza [2016]s.149 Road Traffic Act 1988Nettleship v Weston [1971]
Where candidates lose marks
- Treating contributory negligence as a complete defence rather than a reduction in damages.
- Applying volenti to employees, rescuers, or motor passengers where it is excluded.
- Overlooking the structured public-policy approach to illegality in Patel v Mirza.
Remedies in tort
Remedies in tort aim to put the claimant, so far as money can, in the position they would have been in had the tort not occurred. Damages are the primary remedy, with injunctions available mainly in land-based torts.
- Compensatory damages restore the claimant to their pre-tort position (Livingstone v Rawyards Coal).
- Damages are split into special damages (quantifiable past losses) and general damages (future and non-pecuniary losses).
- In personal injury claims general damages include pain, suffering and loss of amenity, alongside loss of earnings and care costs.
- The claimant must mitigate their loss and cannot recover for losses reasonably avoidable.
- Damages are generally assessed once and for all as a lump sum, subject to statutory periodical payment options.
- Prohibitory and mandatory injunctions restrain or require conduct, principally in nuisance, and are discretionary.
- Damages may be awarded in lieu of an injunction, guided by the Shelfer factors as reconsidered in Coventry v Lawrence.
Key cases & statutes
Livingstone v Rawyards Coal Co (1880)British Transport Commission v Gourley [1956]The Wagon Mound (No 1) [1961]Shelfer v City of London Electric Lighting [1895]Coventry v Lawrence [2014]Lim Poh Choo v Camden & Islington AHA [1980]
Where candidates lose marks
- Forgetting the duty to mitigate when calculating recoverable loss.
- Assuming an injunction is available as of right rather than being discretionary.
- Overlooking the once-and-for-all lump-sum rule and the availability of damages in lieu of an injunction.
FLK1 · Subject 5 of 13
SQE1 Legal System, Constitutional & EU Law
This module combines the Legal System of England and Wales with Constitutional and Administrative Law and EU law. It covers the courts and precedent, statutory interpretation, the constitutional principles, judicial review, the Human Rights Act, and the status of retained (assimilated) EU law after the implementation period.
How Legal System is examined
Expect questions on which court binds which, the correct route of appeal, the grounds and remedies of judicial review, and how the Human Rights Act operates. Judicial review grounds (illegality, irrationality, procedural impropriety) are a reliable source of questions.
How to revise it
- Memorise the court hierarchy and the appeal routes, including case stated.
- Know the three grounds of judicial review and the remedies and time limits.
- Be clear on ss.3, 4 and 6 of the Human Rights Act 1998.
The 8 Legal System subtopics
Courts & the doctrine of precedent
The courts of England and Wales are arranged in a hierarchy, and the doctrine of precedent (stare decisis) requires courts to follow the reasoning of earlier decisions of courts above them. Understanding which court binds which, and what part of a judgment binds, is central to legal method.
- Hierarchy runs (broadly): Supreme Court, Court of Appeal, High Court, then Crown Court / county court / magistrates; the Supreme Court binds all courts below it.
- Only the ratio decidendi (the legal reasoning necessary to the decision) is binding; obiter dicta are persuasive only.
- The Court of Appeal is generally bound by its own previous decisions, subject to the exceptions in Young v Bristol Aeroplane (conflicting decisions, decision inconsistent with a later Supreme Court/House of Lords decision, or a decision made per incuriam).
- The Supreme Court can depart from its own previous decisions using the Practice Statement (Judicial Precedent) 1966, though it does so cautiously.
- A court may avoid a binding precedent by distinguishing it on the material facts.
- Persuasive authorities include obiter dicta, decisions of lower courts, dissenting judgments, and decisions of courts in other common law jurisdictions (e.g. the Privy Council).
- Precedent operates alongside statute: legislation prevails over inconsistent case law, and courts interpret statute (see statutory interpretation).
Key cases & statutes
Doctrine of precedent / stare decisisRatio decidendi and obiter dictaYoung v Bristol Aeroplane Co Ltd [1944] (Court of Appeal self-binding exceptions)Practice Statement (Judicial Precedent) [1966] 1 WLR 1234London Street Tramways v LCC [1898] (former rule that House of Lords bound itself)Per incuriamDistinguishing on the factsPrivy Council (persuasive authority)Senior Courts Act 1981
Where candidates lose marks
- Treating obiter statements as binding; only the ratio binds.
- Assuming the Court of Appeal can freely depart from its own decisions - it can only within the Young v Bristol Aeroplane exceptions.
- Confusing the Practice Statement (Supreme Court) power with the more limited position of the Court of Appeal.
- Forgetting that Privy Council and foreign decisions are persuasive, not binding.
Statutory interpretation
Statutory interpretation is the process by which courts determine the meaning of legislation. Courts apply established approaches and use internal and external aids to give effect to Parliament's intention.
- The literal rule gives words their plain, ordinary meaning even if the result seems harsh (Whiteley v Chappell).
- The golden rule modifies the literal approach to avoid an absurd or repugnant result (R v Allen).
- The mischief rule (Heydon's Case) asks what defect in the previous law Parliament intended to remedy.
- The modern purposive approach seeks the purpose behind the provision and is now dominant, reinforced by the interpretive obligation under the Human Rights Act 1998 s.3.
- Rules of language assist: ejusdem generis (general words follow a class), expressio unius est exclusio alterius, and noscitur a sociis (words take colour from their context).
- Presumptions apply, e.g. against retrospective effect, against ousting the jurisdiction of the courts, and that mens rea is required for criminal offences.
- Aids to construction: intrinsic (long title, headings, definition sections) and extrinsic (dictionaries, the Interpretation Act 1978, and Hansard within the Pepper v Hart conditions).
Key cases & statutes
Heydon's Case (1584) (mischief rule)Whiteley v Chappell (1868) (literal rule)R v Allen (1872) (golden rule)Pepper v Hart [1993] AC 593 (use of Hansard)Human Rights Act 1998 s.3 (reading legislation compatibly with Convention rights)Interpretation Act 1978Ejusdem generis / expressio unius / noscitur a sociisPresumption against retrospectivity
Where candidates lose marks
- Presenting the literal, golden and mischief rules as fixed steps rather than approaches courts move between, with purposive interpretation now dominant.
- Using Hansard without applying the Pepper v Hart limits (ambiguity/obscurity, statements by minister or promoter, and clarity).
- Overlooking the s.3 HRA duty to read legislation compatibly with Convention rights so far as possible.
- Confusing the language rules (e.g. ejusdem generis) with the interpretive rules.
Sources of law & the legislative process
Law in England and Wales derives from several sources, principally Acts of Parliament (primary legislation), delegated legislation, and case law. The legislative process governs how a Bill becomes an Act.
- Primary legislation (Acts of Parliament / statutes) is the highest domestic source and prevails over common law.
- A public Bill proceeds through: first reading, second reading, committee stage, report stage, third reading in one House, then the same stages in the other House, before Royal Assent.
- Delegated (secondary) legislation - statutory instruments, byelaws, Orders in Council - is made under powers in a parent (enabling) Act and can be challenged for being ultra vires.
- Parliamentary control of delegated legislation is exercised through affirmative and negative resolution procedures and scrutiny committees.
- Common law (judge-made law) and equity remain important sources, filling gaps and developing principle within the doctrine of precedent.
- The Human Rights Act 1998 and (historically) EU law shaped domestic sources; retained EU law is now 'assimilated law'.
- The courts may review delegated legislation but cannot strike down primary legislation (they can issue a declaration of incompatibility under HRA s.4).
Key cases & statutes
Act of Parliament (primary legislation)Statutory instrument / delegated legislationUltra vires (delegated legislation)Enabling / parent ActRoyal Assent (Royal Assent Act 1967)Affirmative and negative resolution proceduresCommon law and equityHuman Rights Act 1998 s.4 (declaration of incompatibility)
Where candidates lose marks
- Confusing primary legislation (Acts) with delegated legislation (statutory instruments) - only the latter can be quashed as ultra vires.
- Muddling the order of legislative stages, or which House they occur in.
- Assuming courts can strike down an Act of Parliament; they cannot, only declare incompatibility under s.4 HRA.
- Overstating the role of custom or convention as formal legal sources.
Parliamentary sovereignty & the rule of law
Parliamentary sovereignty and the rule of law are the two foundational principles of the UK's uncodified constitution. Together they shape the relationship between Parliament, the executive and the courts.
- Dicey's orthodox view: Parliament can make or unmake any law, no Parliament can bind its successors, and no body (including the courts) can override an Act of Parliament.
- The enrolled Bill rule means courts will not question the validity of an Act properly passed (Pickin v British Railways Board).
- The rule of law requires government according to law, legal certainty, equality before the law, and access to independent courts (Entick v Carrington; R (UNISON) v Lord Chancellor).
- Constitutional statutes (e.g. the Human Rights Act 1998, devolution Acts) are not subject to implied repeal (Thoburn v Sunderland CC).
- The separation of powers is only partial in the UK; the Constitutional Reform Act 2005 strengthened judicial independence and created the Supreme Court.
- Constitutional conventions (e.g. the Sewel convention, ministerial responsibility) are binding in practice but not legally enforceable (Miller (No 1)).
- Prerogative powers are subject to statute and to judicial control (Miller (No 2) on prorogation; De Keyser).
Key cases & statutes
A V Dicey (parliamentary sovereignty and the rule of law)Pickin v British Railways Board [1974] (enrolled Bill rule)Entick v Carrington (1765) (executive needs legal authority)R (Miller) v Secretary of State (No 1) [2017] / (No 2) [2019] (prerogative, prorogation)Thoburn v Sunderland CC [2002] (constitutional statutes / no implied repeal)Constitutional Reform Act 2005R (UNISON) v Lord Chancellor [2017] (access to justice)Attorney General v De Keyser's Royal Hotel [1920] (statute displaces prerogative)
Where candidates lose marks
- Stating parliamentary sovereignty as if wholly unqualified without noting devolution, the HRA and constitutional statutes.
- Treating constitutional conventions as legally enforceable - courts recognise but do not enforce them.
- Confusing the rule of law (a principle) with a specific statute.
- Assuming full separation of powers in the UK when it is only partial.
Judicial review: grounds
Judicial review is the process by which the High Court supervises the lawfulness of decisions made by public bodies. The grounds are traditionally grouped as illegality, irrationality and procedural impropriety, with proportionality applying in human rights and (formerly) EU contexts.
- Illegality: the decision-maker must correctly understand and give effect to the law - errors of law, acting ultra vires, fettering discretion, unlawful delegation, and taking into account irrelevant (or ignoring relevant) considerations.
- Irrationality / Wednesbury unreasonableness: a decision so unreasonable that no reasonable authority could have made it (Associated Provincial Picture Houses v Wednesbury).
- Procedural impropriety: breach of statutory procedures, breach of natural justice (the right to a fair hearing and the rule against bias), and the duty to give reasons where required.
- The GCHQ case classified the grounds and confirmed that prerogative powers are in principle reviewable.
- Legitimate expectation (procedural or substantive) may arise from a clear promise or established practice (Coughlan).
- Proportionality applies where Convention rights or (formerly) EU law are engaged; there is ongoing debate about it as a free-standing ground.
- Bias: automatic disqualification for a direct interest (Pinochet) and the fair-minded and informed observer test for apparent bias (Porter v Magill).
Key cases & statutes
Council of Civil Service Unions v Minister for the Civil Service [1985] (GCHQ case - illegality/irrationality/procedural impropriety)Associated Provincial Picture Houses v Wednesbury Corp [1948] (unreasonableness)R v North and East Devon HA, ex p Coughlan [2001] (substantive legitimate expectation)Porter v Magill [2002] (apparent bias test)R v Bow Street Magistrate, ex p Pinochet (No 2) [2000] (automatic disqualification)Padfield v Minister of Agriculture [1968] (improper purpose)R (Daly) v Home Secretary [2001] (proportionality)Anisminic v Foreign Compensation Commission [1969] (error of law / ouster)
Where candidates lose marks
- Confusing irrationality (a high threshold) with mere disagreement on the merits - JR reviews legality, not merit.
- Treating proportionality as a general domestic ground; it is established for HRA/EU contexts.
- Overlooking that natural justice covers both the right to a fair hearing and the rule against bias.
- Forgetting that fettering discretion and unlawful delegation are forms of illegality.
Judicial review: remedies & procedure
Judicial review has its own remedies and a distinct procedure under the Civil Procedure Rules Part 54. Claimants must satisfy requirements on standing, time limits, amenability and permission before the court considers the substantive grounds.
- The claim must concern a public law decision by a body amenable to review (public function), pursued through the Administrative Court under CPR Part 54.
- The claimant needs sufficient interest (standing) in the matter - a liberal test, including public interest groups (R v IRC, ex p National Federation of Self-Employed).
- The claim must be brought promptly and in any event within 3 months of the grounds arising (shorter periods apply in some fields, e.g. planning and procurement).
- There is a two-stage process: permission must be obtained before the substantive hearing.
- Remedies are discretionary: quashing order, prohibiting order, mandatory order, plus declaration, injunction and (exceptionally) damages.
- Alternative remedies should usually be exhausted first; delay, conduct and futility can defeat relief even where grounds are made out.
- Ouster clauses are construed narrowly (Anisminic; Privacy International), and relief may be refused where it would make no difference (Senior Courts Act 1981 s.31(2A)).
Key cases & statutes
Civil Procedure Rules Part 54 / Senior Courts Act 1981 s.31R v Inland Revenue Commissioners, ex p National Federation of Self-Employed [1982] (standing)Quashing, prohibiting and mandatory ordersDeclaration and injunctionThree-month promptness time limit (CPR 54.5)Permission stage (CPR 54.4)R (Privacy International) v Investigatory Powers Tribunal [2019] (ouster clauses)O'Reilly v Mackman [1983] (procedural exclusivity)
Where candidates lose marks
- Missing that JR must be brought promptly - even within 3 months a claim can be too late if not prompt.
- Assuming remedies are granted as of right; all JR remedies are discretionary.
- Overlooking the permission stage as a filter before the substantive hearing.
- Bringing JR where a suitable alternative remedy (e.g. a statutory appeal) exists.
The Human Rights Act & ECHR
The Human Rights Act 1998 gives further effect in domestic law to most rights in the European Convention on Human Rights. It shapes how legislation is interpreted, how public authorities must act, and the remedies available for breaches.
- Section 2 requires courts to take into account the jurisprudence of the European Court of Human Rights (Strasbourg) without being strictly bound by it.
- Section 3 requires legislation to be read and given effect compatibly with Convention rights so far as it is possible to do so (Ghaidan v Godin-Mendoza).
- Section 4 allows the higher courts to make a declaration of incompatibility, which does not invalidate the legislation but signals to Parliament.
- Section 6 makes it unlawful for a public authority to act incompatibly with Convention rights, subject to s.6(2) where primary legislation compels the act.
- Sections 7-8 let a victim bring proceedings and empower courts to grant just and appropriate remedies, including damages.
- Rights are classified as absolute (e.g. Art 3), limited (e.g. Art 5), and qualified (Arts 8-11), where interference must be lawful, pursue a legitimate aim, and be necessary and proportionate.
- The margin of appreciation (Strasbourg) and deference/proportionality analysis structure the balancing of rights.
Key cases & statutes
Human Rights Act 1998 ss.2, 3, 4, 6, 7, 8European Convention on Human Rights (Arts 2, 3, 5, 6, 8-11)Ghaidan v Godin-Mendoza [2004] (scope of s.3 interpretation)R (Daly) v Home Secretary [2001] (proportionality)Bank Mellat v HM Treasury (No 2) [2013] (proportionality test)Declaration of incompatibility (s.4)Public authority (s.6) and 'victim' (s.7)Absolute, limited and qualified rights
Where candidates lose marks
- Thinking a declaration of incompatibility strikes down or disapplies the offending Act - it does not; Parliament must act.
- Treating Strasbourg decisions as strictly binding; under s.2 they must be taken into account.
- Ignoring the limits of s.3 - it cannot be used to go against the fundamental features of legislation.
- Applying proportionality to absolute rights, which cannot be balanced away.
Retained (assimilated) EU law
Following the UK's withdrawal from the EU, EU-derived law was preserved domestically as retained EU law and has since been renamed assimilated law. Its status, interpretation and supremacy have been significantly reformed.
- The European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 and converted EU-derived law into 'retained EU law' at the end of the transition period.
- The Retained EU Law (Revocation and Reform) Act 2023 renamed the remaining body of law 'assimilated law' from 1 January 2024 and revoked a schedule of instruments.
- The principle of the supremacy of EU law and the EU general principles were abolished in domestic law from the end of 2023 under the 2023 Act.
- Courts are no longer bound by retained EU case law in the same way; higher courts may depart from it, and new reference and intervention procedures apply.
- Directly effective Treaty rights and directives largely ceased to have domestic effect except as specifically preserved.
- The UK is no longer subject to the jurisdiction of the Court of Justice of the EU, save for limited residual matters under the Withdrawal Agreement.
- The Withdrawal Agreement (given effect by the EU (Withdrawal Agreement) Act 2020) preserves certain citizens' rights and Northern Ireland arrangements.
Key cases & statutes
European Union (Withdrawal) Act 2018Retained EU Law (Revocation and Reform) Act 2023 (assimilated law from 1 Jan 2024)European Communities Act 1972 (repealed)European Union (Withdrawal Agreement) Act 2020Assimilated / retained EU lawAbolition of supremacy of EU law (from end of 2023)Court of Justice of the European Union (jurisdiction largely ended)Retained/assimilated case law and departure powers
Where candidates lose marks
- Using the outdated term without noting 'retained EU law' became 'assimilated law' from 1 January 2024.
- Stating EU law is still supreme - supremacy was abolished domestically from the end of 2023.
- Assuming the CJEU still has general jurisdiction over the UK; only limited residual matters remain.
- Confusing the 2018 Withdrawal Act (conversion) with the 2023 Reform Act (renaming and revocation).
FLK1 · Subject 6 of 13
SQE1 Legal Services & Professional Conduct
Legal Services is where professional conduct and ethics are examined head-on — the SRA Principles and Code of Conduct, regulation of the profession, anti-money laundering and an overview of financial services regulation. Ethics is also examined pervasively across every other subject, so this module underpins the whole exam.
How Legal Services is examined
Questions put you in a conduct dilemma and ask what you must do under the Principles and Code — on conflicts, confidentiality, undertakings, or money laundering. The correct answer is the one that best upholds the Principles, resolving any conflict between them in the right order.
How to revise it
- Learn the seven SRA Principles and how a conflict between them is resolved.
- Master the AML obligations under POCA 2002 — SARs, consent and tipping off.
- Watch for confidentiality vs disclosure and own-interest vs client conflicts.
The 7 Legal Services subtopics
The SRA Principles
The SRA Principles are the seven overarching ethical mandates that govern all those the SRA regulates. They express the fundamental standards expected of solicitors and firms and underpin the entire regulatory framework.
- There are seven Principles: act (1) in a way that upholds the constitutional principle of the rule of law and the proper administration of justice; (2) in a way that upholds public trust and confidence in the solicitors' profession; (3) with independence; (4) with honesty; (5) with integrity; (6) in a way that encourages equality, diversity and inclusion; and (7) in the best interests of each client.
- Where two or more Principles come into conflict, the one that best serves the public interest (especially the proper administration of justice) takes precedence.
- The Principles apply to individuals and firms and cover conduct both inside and, in some respects, outside practice.
- Honesty (Principle 4) and integrity (Principle 5) are distinct: integrity is a broader concept than dishonesty (Wingate v SRA; Ivey v Genting on the test for dishonesty).
- Breach of the Principles can lead to disciplinary action by the SRA or the Solicitors Disciplinary Tribunal.
- The Principles sit above and inform the two Codes of Conduct.
- Acting in the best interests of the client (Principle 7) does not permit breaching the law or other Principles.
Key cases & statutes
SRA Principles (the seven Principles)SRA Standards and Regulations 2019Principle 4 (honesty) and Principle 5 (integrity)Ivey v Genting Casinos [2017] (test for dishonesty)Wingate v SRA / Malins v SRA [2018] (meaning of integrity)Solicitors Disciplinary Tribunal (SDT)Proper administration of justice / rule of law (Principle 1)Public trust and confidence (Principle 2)
Where candidates lose marks
- Treating honesty and integrity as the same - integrity is wider and can be breached without dishonesty.
- Assuming the client's best interests (Principle 7) can justify overriding the public interest or the law.
- Forgetting the priority rule: where Principles conflict, the public interest and proper administration of justice prevail.
- Reciting only some Principles - candidates should know all seven.
The Code of Conduct
The SRA Codes of Conduct set out the standards and business controls expected of solicitors (the Code for Solicitors, RELs and RFLs) and of firms (the Code for Firms). They translate the Principles into specific outcomes-focused obligations.
- There are two Codes: one for solicitors, registered European lawyers and registered foreign lawyers, and one for firms.
- Core duties include not misleading the court or others (paras 1.4 and 2.1), maintaining trust, and acting with honesty and integrity.
- Solicitors must provide a proper standard of service and competent, up-to-date practice, and only act on proper instructions with client authority.
- Client care obligations require clear information on costs, complaints, regulatory status and service (transparency rules), given at the outset and as matters progress.
- There is a duty of candour to the court and not to construct facts or mislead; a solicitor must not deceive or knowingly mislead the court (para 2 of the Code).
- The Code for Firms requires effective governance, systems and controls, a Compliance Officer for Legal Practice (COLP) and Compliance Officer for Finance and Administration (COFA).
- Serious breaches must be reported promptly to the SRA; individuals and firms have distinct but overlapping reporting duties.
Key cases & statutes
SRA Code of Conduct for Solicitors, RELs and RFLsSRA Code of Conduct for FirmsCOLP and COFA (compliance officers)Duty not to mislead the court (candour)SRA Transparency Rules (costs and service information)Duty to report serious breaches to the SRACompetence and standard of serviceSRA Standards and Regulations 2019
Where candidates lose marks
- Confusing the Code for Solicitors with the Code for Firms - they impose different (though overlapping) duties.
- Overlooking the outcomes-focused, judgement-based nature of the Codes rather than rigid rules.
- Forgetting the duty of candour: a solicitor must never mislead the court, even by omission or by allowing a false impression to persist.
- Missing the mandatory reporting of serious breaches to the SRA.
Conflicts of interest & confidentiality
Conflicts of interest and confidentiality are among the most heavily tested conduct topics. A solicitor must not act where there is a conflict, must keep client information confidential, and must make relevant disclosures - obligations that can pull in opposite directions.
- Own interest conflict: a solicitor must not act if there is an own interest conflict or a significant risk of one (no exceptions).
- Client conflict: a solicitor must not act where there is a conflict, or significant risk of a conflict, between two or more clients - unless a narrow exception applies.
- The two client-conflict exceptions are: (a) the substantially common interest exception, and (b) the competing for the same objective exception - each subject to safeguards (informed written consent, appropriate safeguards, and being satisfied it is reasonable to act).
- Confidentiality is a continuing duty (it survives the end of the retainer and the client's death) covering all client information, under the Code and the law.
- The duty of disclosure requires informing a client of all information material to their matter - but confidentiality to one client takes precedence over disclosure to another.
- Where confidentiality and disclosure conflict, a solicitor must not act for the client to whom disclosure is owed unless effective safeguards (e.g. an information barrier) and informed consent are in place.
- Confidentiality may be overridden where required or permitted by law (e.g. money laundering reporting) or to prevent serious harm.
Key cases & statutes
Own interest conflict and client conflict (SRA Code paras 6.1-6.2)Substantially common interest exceptionCompeting for the same objective exceptionDuty of confidentiality (para 6.3) and duty of disclosure (para 6.4)Bolkiah v KPMG [1999] (information barriers / former client)Informed consent (in writing)Information barrier (Chinese wall)SRA Principles 5 and 7
Where candidates lose marks
- Allowing the duty of disclosure to override confidentiality - confidentiality generally prevails.
- Applying the client-conflict exceptions to an own interest conflict; the exceptions do not apply to own interest conflicts.
- Forgetting that confidentiality continues after the retainer ends and after death.
- Assuming an information barrier alone cures a conflict without informed consent and adequate safeguards.
Reserved activities & regulation
The provision of certain legal activities is restricted to authorised persons. The reserved legal activities and the regulatory architecture created by the Legal Services Act 2007 define who may do what and who regulates them.
- The Legal Services Act 2007 lists six reserved legal activities: the exercise of a right of audience; the conduct of litigation; reserved instrument activities; probate activities; notarial activities; and the administration of oaths.
- Only an authorised (or exempt) person may carry on a reserved legal activity; doing so otherwise is a criminal offence.
- The Legal Services Board is the oversight regulator; approved regulators (e.g. the Law Society) delegate regulatory functions to independent arms such as the SRA.
- The SRA regulates solicitors and authorised firms, including alternative business structures (ABS) that allow non-lawyer ownership.
- Much legal work (e.g. general legal advice, will drafting) is not reserved and can be done by unregulated providers.
- Practising requires a valid practising certificate; certain roles trigger authorisation requirements.
- The regulatory objectives in s.1 LSA 2007 (e.g. protecting consumers, promoting competition, the public interest) guide the regulators.
Key cases & statutes
Legal Services Act 2007 (six reserved legal activities)Rights of audience and conduct of litigationReserved instrument activities and probate activitiesLegal Services Board (oversight regulator)Approved regulators and the SRAAlternative Business Structures (ABS)Practising certificateRegulatory objectives (s.1 LSA 2007)
Where candidates lose marks
- Assuming all legal work is reserved - most legal advice and will-writing are not reserved activities.
- Confusing the oversight regulator (LSB) with the front-line regulator (SRA).
- Forgetting that carrying on a reserved activity without authorisation is a criminal offence.
- Overlooking that ABS structures permit non-lawyer ownership and management.
Complaints & the Legal Ombudsman
Clients dissatisfied with a solicitor's service have routes for redress. Firms must operate an in-house complaints procedure, and unresolved service complaints can go to the Legal Ombudsman, while conduct concerns go to the SRA.
- Firms must have and tell clients about a complaints procedure at the outset, and inform them of their right to complain to the Legal Ombudsman and any regulatory body.
- The firm must give a final response within 8 weeks; if unresolved, the client can take the complaint to the Legal Ombudsman.
- Legal Ombudsman time limits: generally within one year of the act/omission (or of when the client should reasonably have known), and within six months of the firm's final response.
- The Legal Ombudsman can direct remedies including apologies, corrective action, fee refunds/reductions and compensation up to a limit of £50,000.
- Service complaints go to the Legal Ombudsman; matters of professional misconduct go to the SRA (which may refer serious cases to the Solicitors Disciplinary Tribunal).
- The SRA can impose sanctions such as rebukes, fines, conditions, and referral to the SDT, which can strike off, suspend or fine.
- Clients also retain the ordinary right to sue in negligence or for breach of contract separately from the complaints routes.
Key cases & statutes
Legal Ombudsman (LeO) and its Scheme RulesCompensation limit of £50,000Eight-week final response requirementOne year / six month time limits (LeO)Solicitors Disciplinary Tribunal (SDT)SRA enforcement powers (rebuke, fine, conditions)In-house complaints procedure (client care)Distinction between service complaints and conduct complaints
Where candidates lose marks
- Confusing the Legal Ombudsman (service/redress) with the SRA (regulation/conduct and discipline).
- Misstating the LeO time limits or the £50,000 award limit.
- Forgetting the 8-week window for the firm's final response before the LeO will normally accept a complaint.
- Assuming the complaints process replaces the client's right to sue in negligence or contract.
Anti-money laundering
Solicitors are subject to a strict anti-money laundering regime. The Proceeds of Crime Act 2002 and the Money Laundering Regulations impose obligations to detect, prevent and report money laundering, backed by criminal offences.
- The principal money laundering offences are under POCA 2002 ss.327 (concealing), 328 (arrangements) and 329 (acquisition, use and possession).
- Failure to disclose in the regulated sector is an offence under POCA 2002 s.330 where there are reasonable grounds to know or suspect money laundering.
- Tipping off (s.333A) and prejudicing an investigation (s.342) are separate offences - a solicitor must not alert the client that a disclosure has been or may be made.
- A Suspicious Activity Report (SAR) is made to the National Crime Agency; where consent to proceed is needed, a Defence Against Money Laundering (DAML) request is submitted.
- The Money Laundering Regulations 2017 (as amended) require firms to carry out customer due diligence (CDD), ongoing monitoring, and enhanced due diligence for higher-risk situations.
- Firms must have a risk assessment, policies and controls, and appoint a Money Laundering Reporting Officer (MLRO) / nominated officer.
- Legal professional privilege can provide a defence to non-disclosure, but not where communications are made to further a criminal purpose (the crime/fraud exception).
Key cases & statutes
Proceeds of Crime Act 2002 ss.327, 328, 329POCA 2002 s.330 (failure to disclose - regulated sector)POCA 2002 s.333A (tipping off) and s.342Money Laundering Regulations 2017 (CDD and EDD)Suspicious Activity Report (SAR) to the National Crime AgencyDefence Against Money Laundering (DAML) / appropriate consentMoney Laundering Reporting Officer (MLRO) / nominated officerLegal professional privilege and the crime/fraud exception
Where candidates lose marks
- Confusing the s.330 failure-to-disclose offence (regulated sector, objective test) with the principal ss.327-329 offences.
- Warning a client about a report and thereby committing tipping off.
- Assuming privilege always defeats disclosure - the crime/fraud exception removes protection.
- Overlooking the need to obtain appropriate consent (DAML) before proceeding with a suspicious transaction.
Financial services regulation
Solicitors' firms may carry out certain regulated financial services work only within a controlled framework. The Financial Services and Markets Act 2000 restricts regulated activities, and solicitors rely on specific exemptions to avoid needing FCA authorisation.
- The general prohibition in FSMA 2000 s.19 means a person must not carry on a regulated activity in the UK unless authorised or exempt.
- Regulated activities (buying/selling/arranging/advising on specified investments) are defined by the FSMA 2000 (Regulated Activities) Order 2001 (RAO).
- Solicitors typically avoid FCA authorisation by relying on the Part XX exemption for professional firms whose regulated activities are incidental to their legal work and supervised by a Designated Professional Body (the Law Society/SRA).
- The exclusions in the RAO (e.g. acting as trustee/personal representative, or activities carried on in the course of a profession) can also take work outside the general prohibition.
- Firms relying on the Part XX exemption must comply with the SRA Financial Services (Scope) Rules and (Conduct of Business) Rules.
- 'Mainstream' or non-incidental regulated activity requires full FCA authorisation, which most high-street firms do not have.
- Insurance distribution and certain consumer credit activities are also regulated and require attention to whether an exemption or authorisation applies.
Key cases & statutes
Financial Services and Markets Act 2000 s.19 (general prohibition)FSMA 2000 (Regulated Activities) Order 2001 (RAO)Part XX FSMA exemption (professional firms)Designated Professional Body (SRA / Law Society)SRA Financial Services (Scope) RulesSRA Financial Services (Conduct of Business) RulesFinancial Conduct Authority (FCA) authorisationIncidental / non-mainstream regulated activities
Where candidates lose marks
- Assuming solicitors need FCA authorisation for all investment-related work - most rely on the Part XX professional firms exemption.
- Missing that the exemption only covers activities incidental to the provision of legal services.
- Confusing an RAO exclusion with the Part XX exemption regime.
- Overlooking the SRA Scope and Conduct of Business Rules that govern exempt firms.
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Functioning Legal Knowledge 2 (FLK2)
FLK2 · Subject 7 of 13
SQE1 Property Practice
Property Practice follows a conveyancing transaction from instructions to post-completion — investigating title, searches and enquiries, the contract, exchange, completion, SDLT/LTT and Land Registry, and acting for a lender. It is a process subject that rewards knowing the order of events and what happens at each stage.
How Property Practice is examined
You'll be placed at a stage of a sale or purchase and asked what search to make, what the title reveals, the effect of exchange, or the post-completion steps and deadlines. Lender and leasehold issues are common.
How to revise it
- Learn the conveyancing sequence and the deadlines (SDLT/LTT, Land Registry).
- Know which search reveals what — local, drainage, environmental, and the CON29 forms.
- Understand the conflicts and duties when acting for buyer and lender together.
The 8 Property Practice subtopics
The conveyancing process
Residential and commercial conveyancing follows a set sequence from investigation through to registration. The solicitor manages each stage, protects the client and complies with anti-money-laundering duties throughout.
- The transaction runs through five stages: pre-contract (investigation, searches, enquiries), exchange, pre-completion, completion, then post-completion (tax and registration).
- Standard Conditions of Sale (5th edn) govern most residential deals; the Standard Commercial Property Conditions (3rd edn) are used for commercial transactions.
- The Law Society Conveyancing Protocol standardises residential practice and uses the TA forms (TA6 Property Information, TA10 Fittings and Contents, TA13 completion information).
- A solicitor generally cannot act for both seller and buyer because of the SRA conflict of interest rules; separate representation is the norm.
- At the outset give client care and costs information, and carry out identity and source-of-funds checks under the Money Laundering Regulations 2017.
- Confirm the client's funding (deposit, mortgage, sale proceeds) before committing to a timetable.
- Keep the client updated at each stage and confirm instructions before exchange and completion.
Key cases & statutes
Standard Conditions of Sale (5th edn)Standard Commercial Property Conditions (3rd edn)Law Society Conveyancing ProtocolTA6 / TA10 / TA13Money Laundering Regulations 2017Land Registration Act 2002SDLTLand Transaction Tax (Wales)
Where candidates lose marks
- Assuming you may act for both buyer and seller without checking the conflict rules.
- Overlooking identity and source-of-funds verification under the MLR 2017.
- Applying residential standard conditions to a commercial transaction, or vice versa.
Investigating title
Investigating title establishes that the seller owns the estate and can transfer it free of undisclosed third-party interests. The method differs for registered and unregistered land.
- For registered land, obtain official copies of the register and title plan from HM Land Registry and check the class of title (absolute, possessory or qualified).
- The register has three parts: the Property Register (the estate and its benefits), the Proprietorship Register (owner, class of title and any restrictions) and the Charges Register (mortgages, covenants and easements that burden the land).
- For unregistered land, examine the epitome of title and deduce a good root of title at least 15 years old, tracing an unbroken chain of ownership.
- Identify third-party interests: restrictive covenants, easements, charges, notices and restrictions.
- Overriding interests under LRA 2002 Schedule 3 bind a buyer even though they do not appear on the register, notably the interests of persons in actual occupation and short legal leases.
- A Form A restriction indicates a tenancy in common; appoint a second trustee so purchase money overreaches any beneficial interest.
- Raise requisitions with the seller to resolve any defect or query on the title.
Key cases & statutes
Land Registration Act 2002official copiesabsolute titleLRA 2002 Sch 3 (overriding interests)actual occupationroot of title (15 years)epitome of titleForm A restrictionoverreaching (LPA 1925 s.2 & s.27)
Where candidates lose marks
- Missing overriding interests, such as an occupier's rights, that are not on the register.
- Accepting a defective or too-recent root of title in unregistered conveyancing.
- Failing to overreach a beneficial interest by not appointing a second trustee.
Pre-contract searches & enquiries
Because caveat emptor applies, the buyer's solicitor must investigate the property through searches and pre-contract enquiries before the client is committed.
- Carry out the local land charges search (LLC1) and enquiries of the local authority (CON29, with optional CON29O) covering planning, roads and notices.
- Make a drainage and water search (CON29DW) to confirm mains connection and the position of public sewers.
- Consider an environmental and contaminated land search, plus location-specific searches such as flood, mining or chancel repair.
- Raise pre-contract enquiries of the seller using the TA6 Property Information Form and TA10 Fittings and Contents Form.
- Under caveat emptor the seller need not disclose physical defects, but must disclose latent defects in title.
- Advise the client to obtain an appropriate survey; the solicitor does not advise on structural condition.
- Report search results and adverse entries to the client before exchange.
Key cases & statutes
caveat emptorLLC1CON29 / CON29OCON29DWenvironmental searchTA6TA10chancel repairmining / flood search
Where candidates lose marks
- Relying on the seller's replies without carrying out independent searches.
- Omitting location-specific searches such as mining or flood risk.
- Confusing physical condition (a matter for a survey) with defects in title.
The contract & deducing title
The contract sets the terms of sale and incorporates the standard conditions, while title is deduced to the buyer before exchange.
- A contract for the sale of land must be in writing, contain all the expressly agreed terms and be signed by or on behalf of each party: LP(MP)A 1989 s.2.
- Two identical parts are prepared and each party signs one part ready for exchange.
- The contract identifies the parties, property, price, deposit (usually 10%), completion date, title guarantee and the incumbrances subject to which the property is sold.
- The Standard Conditions of Sale (5th edn) are incorporated unless varied by special conditions.
- Title is deduced before exchange: official copies for registered land, or an epitome for unregistered land.
- The deposit is generally held as stakeholder under the SCS unless the parties agree it is held as agent.
- A full title guarantee implies wider covenants for title than a limited title guarantee: LP(MP)A 1994.
Key cases & statutes
LP(MP)A 1989 s.2Standard Conditions of Sale (5th edn)full / limited title guaranteeLP(MP)A 1994stakeholderdeposit (10%)special conditionsincumbrances
Where candidates lose marks
- A contract that fails the s.2 formalities is void, not merely voidable.
- Forgetting to override an unsuitable standard condition with a special condition.
- Confusing a stakeholder deposit (held pending completion) with an agent deposit (released to the seller).
Exchange of contracts
Exchange of contracts creates a binding contract; from that point the buyer holds an equitable interest and, under the standard conditions, bears the risk.
- Before exchange the two parts must be identical and signed, and the deposit funds must be available.
- Exchange can take place in person, by post, or by telephone using the Law Society Formulae A, B or C.
- Formula A is used where one solicitor already holds both signed parts; Formula B where each holds their own client's part; Formula C is designed for chains of transactions.
- On exchange the contract becomes binding and neither party may withdraw without being in breach.
- The buyer acquires an equitable interest and, under the SCS, risk passes to the buyer, so buildings insurance should be in place from exchange.
- The deposit (usually 10%) is paid on exchange.
- If no completion date is agreed, the SCS default is 20 working days after exchange.
Key cases & statutes
exchange of contractsLaw Society Formula A / B / Cequitable interestrisk passes on exchangedepositcompletion dateStandard Conditions of Sale
Where candidates lose marks
- Exchanging before the mortgage offer and deposit funds are confirmed.
- Failing to insure from exchange when risk has passed to the buyer.
- Using the wrong exchange formula in a chain transaction.
Completion & post-completion
Completion transfers the legal estate on payment of the balance; post-completion covers the tax return and registration that perfect the buyer's title.
- Carry out pre-completion searches: an OS1 official search of the whole title gives the buyer a priority period, and a K16 bankruptcy search is made against a borrower for the lender.
- The buyer raises requisitions on title and prepares the transfer deed (TR1).
- The transfer must be by deed: LPA 1925 s.52, satisfying the deed requirements in LP(MP)A 1989 s.1 (signed, witnessed and delivered).
- Completion usually takes place under the Law Society Code for Completion by Post; the money is sent and the keys released.
- Pay SDLT in England (or Land Transaction Tax in Wales) and file the return within the statutory time limit.
- Apply to register the transfer, and any new charge, at HM Land Registry using form AP1; unregistered land triggers compulsory first registration.
- Ensure the application to register is lodged within the OS1 priority period.
Key cases & statutes
OS1 priority searchK16 bankruptcy searchTR1LPA 1925 s.52LP(MP)A 1989 s.1Law Society Code for Completion by PostAP1SDLT / Land Transaction Tax
Where candidates lose marks
- Missing the SDLT / LTT filing and payment deadline after completion.
- Letting the OS1 priority period lapse before the registration application.
- Forgetting that a purchase of unregistered land triggers first registration.
Mortgages & acting for the lender
A mortgage is a charge over the property that secures the loan. A solicitor frequently acts for both the buyer and the lender, subject to the conflict rules.
- A legal mortgage of registered land is a registered charge under the LRA 2002 and must be registered to take effect at law.
- Acting for buyer and lender together is permitted where there is no conflict and the mortgage is on standard terms, but any conflict must be reported.
- Report on title to the lender and comply with the instructions in the UK Finance Mortgage Lenders' Handbook.
- Give the lender a certificate of title and draw down the mortgage advance in time for completion.
- Priority of charges follows registration; a first legal charge ranks ahead of any later charge.
- On redemption the charge is discharged (form DS1 or an electronic discharge) and removed from the Charges Register.
- Where the seller's property is mortgaged, give an undertaking to discharge that mortgage from the sale proceeds.
Key cases & statutes
registered charge (LRA 2002)UK Finance Mortgage Lenders' Handbookcertificate of titlereport on titleDS1priority of chargesSRA conflict rulesundertaking
Where candidates lose marks
- Continuing to act for both parties where a conflict of interest has arisen.
- Failing to register the lender's charge, so it does not take effect at law.
- Relying on an undertaking to redeem the seller's mortgage without ensuring it is honoured.
Leasehold & new-build
Leasehold transactions add the landlord's title, the lease terms and any required consents, while new-build purchases follow a distinct protocol.
- Investigate both the freehold or superior title and the lease itself, checking the unexpired term, ground rent and service charge.
- A lease granted for more than 7 years is a registrable disposition requiring its own registered title: LRA 2002 s.27.
- An assignment of an existing lease may require the landlord's licence to assign, and often a deed of covenant from the buyer.
- Check the covenants, forfeiture provisions and any restrictions on alienation, alterations or use.
- Raise leasehold enquiries of the landlord or management company (form LPE1) on service charges, arrears and consents.
- A lease of three years or less taking effect in possession at a market rent can be created without a deed: LPA 1925 s.54(2).
- New-build purchases follow the Law Society new-build protocol, come with an NHBC Buildmark or similar warranty, and often run to a shorter timescale.
Key cases & statutes
LRA 2002 s.27 (leases over 7 years)licence to assigndeed of covenantLPE1forfeitureLPA 1925 s.54(2)NHBC Buildmarkground rent / service charge
Where candidates lose marks
- Overlooking the need to register a lease granted for more than 7 years.
- Completing an assignment without a required landlord's consent.
- Failing to warn the client about onerous ground rent or escalating service charges.
FLK2 · Subject 8 of 13
SQE1 Wills & Administration of Estates
Wills and the Administration of Estates covers making a valid will, the intestacy rules, inheritance tax on death and on lifetime transfers, and the administration and distribution of an estate. Inheritance tax calculations and the formalities of wills are dependable question areas.
How Wills & Estates is examined
Questions ask whether a will is valid, what happens to a gift that fails, who takes on intestacy, the IHT payable, or the personal representatives' duties. Section 9 and section 15 of the Wills Act 1837 recur.
How to revise it
- Know s.9 (formalities) and s.15 (gifts to witnesses) of the Wills Act 1837.
- Be able to work through the intestacy order and the spouse's entitlement.
- Practise IHT calculations, including the nil-rate bands and key exemptions and reliefs.
The 7 Wills & Estates subtopics
Validity & formalities of wills
A valid will requires testamentary capacity, knowledge and approval, and the statutory formalities. Failure of any element can render the will invalid.
- The testator must be at least 18 (subject to privileged wills) and have testamentary capacity at the time of execution.
- Capacity is tested by Banks v Goodfellow: the testator must understand the nature and effect of a will, the extent of the property, and the claims they ought to consider, with no disorder of the mind perverting judgment.
- The testator must know and approve the contents; the golden rule suggests a medical practitioner witness a will for an aged or seriously ill testator.
- Formalities under Wills Act 1837 s.9: the will must be in writing and signed by the testator (or by another at the testator's direction and in their presence).
- The signature must be made or acknowledged in the presence of two witnesses present at the same time, who each then attest and sign in the testator's presence.
- A gift to an attesting witness, or to that witness's spouse or civil partner, is void, though the will remains valid: Wills Act 1837 s.15.
- Suspicious circumstances, undue influence or fraud can defeat a will for want of knowledge and approval.
Key cases & statutes
Wills Act 1837 s.9Banks v Goodfellowtestamentary capacityknowledge and approvalgolden ruleWills Act 1837 s.15Wills Act 1837 s.11 (privileged wills)undue influence
Where candidates lose marks
- Allowing a beneficiary or a beneficiary's spouse to act as a witness, voiding the gift.
- Witnesses not being present together when the testator signs or acknowledges the signature.
- Assuming capacity without following the golden rule for a vulnerable testator.
Interpretation & revocation
Wills are construed to give effect to the testator's intention, and can be revoked or altered only in the ways the statute allows.
- A will can be revoked by a later will or codicil, or by an express revocation clause: Wills Act 1837 s.20.
- Revocation by destruction requires the physical act (burning, tearing or destroying) coupled with the intention to revoke: Wills Act 1837 s.20.
- Marriage or the formation of a civil partnership revokes an earlier will, unless the will was made in expectation of that marriage: Wills Act 1837 s.18.
- On divorce or dissolution, the former spouse or civil partner is treated as having died on the date of dissolution for gifts and appointments: Wills Act 1837 s.18A.
- A will speaks from death as to the property it disposes of (s.24), but from the date of execution as to the people described, unless a contrary intention appears.
- Alterations are ineffective unless executed like a will or shown to have been made before execution: Wills Act 1837 s.21.
- Under s.33, a gift to the testator's child or issue who predeceases passes to that person's issue living at the testator's death, unless a contrary intention is shown.
Key cases & statutes
Wills Act 1837 s.20Wills Act 1837 s.18Wills Act 1837 s.18AWills Act 1837 s.24Wills Act 1837 s.21Wills Act 1837 s.33codicilrepublication
Where candidates lose marks
- Overlooking that a later marriage revokes an existing will.
- Treating unattested manuscript alterations as effective.
- Assuming a gift lapses when the s.33 substitution for issue applies.
Intestacy
Where a person dies without a valid will, the intestacy rules determine who inherits and in what shares.
- Intestacy is governed by the Administration of Estates Act 1925 s.46, as amended by the Inheritance and Trustees' Powers Act 2014.
- A surviving spouse or civil partner must survive the deceased by 28 days to inherit.
- Where there is a spouse and issue: the spouse takes the personal chattels, a statutory legacy of £322,000 (for deaths on or after 26 July 2023) plus statutory interest, and half of the residue absolutely; the issue take the other half on the statutory trusts.
- Where there is a spouse but no issue: the spouse takes the whole estate absolutely.
- With no spouse, the estate passes to issue on the statutory trusts; if none, to parents, then siblings of the whole blood, and so on down the statutory order.
- The statutory trusts make issue's entitlement contingent on reaching 18 or earlier marriage, with substitution of a deceased beneficiary's own issue.
- If no relative within the statutory order survives, the estate passes to the Crown as bona vacantia.
Key cases & statutes
Administration of Estates Act 1925 s.46Inheritance and Trustees' Powers Act 2014statutory legacy £322,00028-day survivorshipstatutory trustspersonal chattelsbona vacantia
Where candidates lose marks
- Using the outdated £270,000 statutory legacy figure.
- Forgetting the 28-day survivorship requirement for the spouse.
- Assuming the spouse takes everything even where the deceased left issue.
Personal representatives & grants
Personal representatives administer the estate under the authority of a grant of representation, which also proves their title to the assets.
- Executors are appointed by the will and prove it by a grant of probate; where there is no proving executor, administrators are appointed and take letters of administration.
- The order of priority to take a grant is set by NCPR 1987 r.20 (where there is a will) and r.22 (on intestacy).
- An executor's authority derives from the will and runs from death; an administrator's authority derives only from the grant.
- Grant types are probate, letters of administration with the will annexed, and simple letters of administration.
- PRs must collect in the assets, pay the debts and liabilities, and then distribute to those entitled.
- Protect against unknown claimants by advertising under Trustee Act 1925 s.27 and waiting the two-month notice period before distributing.
- Note the six-month time limit from the grant for claims under the Inheritance (Provision for Family and Dependants) Act 1975.
Key cases & statutes
grant of probateletters of administrationNCPR 1987 r.20 and r.22Trustee Act 1925 s.27executor's yearInheritance (Provision for Family and Dependants) Act 1975statement of truth
Where candidates lose marks
- Distributing without first advertising for creditors and claimants under s.27.
- Distributing before the six-month window for a 1975 Act claim has closed.
- Confusing an executor (authority from the will) with an administrator (authority from the grant).
Inheritance tax on death
Inheritance tax is charged on the value of the death estate, reduced by the nil rate bands and the available exemptions and reliefs.
- The death estate is charged at 40% on the value exceeding the available nil rate band (NRB), currently £325,000.
- A residence nil rate band (RNRB) of up to £175,000 is available where a qualifying residence passes to direct descendants.
- The RNRB is tapered away by £1 for every £2 by which the estate exceeds £2 million.
- Any unused NRB and RNRB can be transferred to a surviving spouse or civil partner, up to a further 100%.
- Transfers between spouses or civil partners are exempt, as are gifts to charity, which reduce the taxable estate.
- A reduced rate of 36% (instead of 40%) applies where at least 10% of the net estate is left to charity.
- Business property relief and agricultural property relief can reduce the taxable value of qualifying assets.
Key cases & statutes
Inheritance Tax Act 1984nil rate band £325,000residence nil rate band £175,000£2m taper thresholdtransferable NRB / RNRBspouse exemption40% / 36% ratesBPR / APR
Where candidates lose marks
- Ignoring a transferable NRB or RNRB available from a predeceased spouse.
- Forgetting to taper the RNRB where the estate exceeds £2 million.
- Charging the full 40% on gifts that qualify for the charity exemption.
IHT: lifetime transfers & reliefs
Lifetime transfers are classified as exempt, potentially exempt or immediately chargeable, which determines their inheritance tax treatment.
- A potentially exempt transfer (PET) is an outright gift to an individual; it becomes fully exempt if the donor survives seven years.
- A chargeable lifetime transfer (CLT), such as a gift into most trusts, is charged at the lifetime rate of 20% on value above the NRB, with a further charge if the donor dies within seven years.
- The annual exemption is £3,000 per tax year, and any unused amount can be carried forward for one year only.
- Further exemptions include small gifts of £250 per recipient per year and gifts that are normal expenditure out of income.
- Gifts in consideration of marriage are exempt up to £5,000 (parent), £2,500 (grandparent or a party) and £1,000 (anyone else).
- Taper relief reduces the tax payable, not the value transferred, on a failed PET where death occurs between three and seven years after the gift.
- A gift with reservation of benefit remains part of the estate for IHT despite the transfer.
Key cases & statutes
potentially exempt transfer (PET)chargeable lifetime transfer (CLT)annual exemption £3,000small gifts exemption £250normal expenditure out of incomemarriage exemptiontaper reliefgift with reservation of benefit
Where candidates lose marks
- Applying taper relief to reduce the value transferred rather than the tax due.
- Overlooking the seven-year cumulation of earlier CLTs when computing tax.
- Missing a gift with reservation, which remains taxable in the donor's estate.
Administering & distributing the estate
After the grant, the personal representatives realise the assets, discharge the liabilities and account to the beneficiaries before final distribution.
- Collect in the assets, then pay the funeral, testamentary and administration expenses and the deceased's debts.
- Pay the inheritance tax; an instalment option is available for land, a business and certain shares, and IHT is often due before the grant issues.
- Apply assets to debts in the statutory order under the Administration of Estates Act 1925 (undisposed-of property first, and so on).
- Prepare estate accounts and, where appropriate, obtain HMRC clearance before the final distribution.
- Assent assets to the beneficiaries; an assent of land must be in writing: Administration of Estates Act 1925 s.36.
- PRs have powers including appropriation under Administration of Estates Act 1925 s.41 and the statutory powers of investment.
- Distribute the legacies and residue, retaining a reserve for any contingent liabilities or unascertained claims.
Key cases & statutes
AEA 1925 s.36 (assent of land)AEA 1925 s.41 (appropriation)estate accountsIHT instalment optionorder of application of assetsHMRC clearanceexecutor's year
Where candidates lose marks
- Distributing before the inheritance tax and creditors have been settled.
- Assenting land without a written assent.
- Distributing prematurely and losing the protection of the executor's year against creditor pressure.
FLK2 · Subject 9 of 13
SQE1 Solicitors Accounts
Solicitors Accounts tests the SRA Accounts Rules — handling client money correctly, the distinction between client and business money, and the double-entry postings for everyday transactions. It is precise and rules-based, and small errors are exactly what the questions probe.
How Solicitors Accounts is examined
You'll be given a transaction and asked which account it affects, whether money is client or business money, or how to correct a breach. Residual balances, disbursements and mixed receipts are common.
How to revise it
- Be certain what counts as client money and what does not (e.g. VAT on your own fees).
- Learn the postings for common transactions and mixed receipts.
- Know how a breach is remedied — promptly, and from the right account.
The 6 Solicitors Accounts subtopics
Client money & the Accounts Rules
The SRA Accounts Rules exist to keep client money safe. They apply whenever a firm holds or receives money belonging to clients or third parties.
- Client money is money you hold or receive that relates to regulated services, that you hold on behalf of a third party, that you hold as trustee or office-holder, or that you receive for your fees and unpaid disbursements before delivering a bill: rule 2.1.
- You must keep client money separate from money belonging to the firm (business money): rule 4.1.
- You must not use one client's money to fund another client's matter.
- You must return client money promptly as soon as there is no longer any proper reason to hold it: rule 2.5.
- You must not use a client account to provide banking facilities; payments in and out must relate to the delivery of your regulated services: rule 3.3.
- The COLP and COFA carry responsibility for the firm's compliance, and the COFA has specific responsibility for the Accounts Rules.
- As an alternative to holding client money, a firm may use a third-party managed account (TPMA): rule 11.
Key cases & statutes
SRA Accounts Rules 2019rule 2.1 (client money)rule 4.1 (money kept separate)rule 2.5 (prompt return)rule 3.3 (no banking facility)COFAthird-party managed account (TPMA)rule 11 (TPMA)
Where candidates lose marks
- Overlooking that advance payments for fees and unpaid disbursements are client money.
- Using the client account to provide banking facilities unconnected to legal services.
- Delaying the return of client money once there is no reason to retain it.
Operating client & business accounts
Firms operate a client bank account and a business account, each subject to distinct requirements under the rules.
- Client money must be held in a client account at a bank or building society in England and Wales: rule 3.1.
- The name of the client account must include the word 'client' to distinguish it from the firm's own accounts: rule 3.2.
- The business (office) account holds the firm's own money, including fees earned and money that is not client money.
- Where the only client money you hold is money for your fees and unpaid disbursements (before a bill), you may be able to keep it in the business account if you meet the conditions and inform the client: rule 2.2.
- You must promptly allocate money received to the correct client account and client ledger, dealing correctly with mixed receipts.
- Once a bill has been delivered and there is no other client money, money received for those costs may be treated as business money.
- Maintain a separate ledger for each client, plus the office ledgers, so balances can be identified at any time.
Key cases & statutes
rule 3.1 (client account)rule 3.2 ('client' in the name)rule 2.2 (business-account option)business / office accountclient ledgermixed receiptsbank or building society in E&W
Where candidates lose marks
- Omitting the word 'client' from the account name.
- Leaving client money sitting in the office account.
- Failing to allocate a mixed receipt promptly to the correct account.
Receipts, payments & transfers
Every receipt, payment and transfer of client money must be properly authorised, promptly recorded and made only within the funds held for that client.
- Keep accurate, contemporaneous and chronological records of all receipts and payments of client money in the client ledgers and cash book: rule 8.1.
- Withdraw client money from the client account only where it is for the purpose for which it is held and on the client's instructions or with proper authority: rule 5.1.
- Only withdraw in respect of a client as much as is held for that client: you must not create an overdrawn client ledger (which would use another client's money): rule 5.3.
- A transfer from client to business account is permitted once a bill or other written notification of costs has been given and the money is due to the firm.
- A transfer between clients must reflect a genuine underlying transaction and be properly recorded.
- Round-sum transfers to the office account on account of costs are not permitted without a bill.
- Records must show, for each client, all dealings with that client's money and the running balance held.
Key cases & statutes
rule 5.1 (proper withdrawals)rule 5.3 (only up to funds held)rule 8.1 (accurate records)client-to-business transferbill of costscash bookclient ledger
Where candidates lose marks
- Overdrawing a client ledger, thereby using one client's money for another.
- Transferring costs to the office account before delivering a bill.
- Keeping incomplete or non-contemporaneous records of client money.
Interest & disbursements
Firms must account to clients for a fair sum of interest on client money and must handle disbursements according to whether they are already paid.
- You must account to the client for a fair sum of interest on client money held, or agree the position in writing: rule 7.1.
- The firm should operate a fair, written interest policy and explain it to clients.
- Money received to reimburse the firm for a disbursement it has already paid is business money.
- Money received in advance for a disbursement that has not yet been paid is client money until it is paid out.
- Professional disbursements, such as counsel's or an expert's fees, must be paid promptly once funds are received for them.
- Consider VAT and the tax point when deciding whether money received for costs or disbursements is client or business money.
- Keep clear records distinguishing disbursements already paid from those still outstanding.
Key cases & statutes
rule 7.1 (interest)fair sum of interestprofessional disbursementdisbursement paid vs unpaidbusiness moneyclient moneyVAT / tax point
Where candidates lose marks
- Failing to account to the client for interest earned on client money.
- Misclassifying an advance for an unpaid disbursement as business money.
- Delaying payment of counsel's or an expert's fees after receiving the funds.
Breaches & shortfalls
Any breach of the rules must be corrected promptly, and any shortfall on the client account must be replaced at once, with serious breaches reported to the SRA.
- Correct any breach of the rules promptly upon discovery: rule 6.1.
- Replace promptly any money withdrawn from the client account in breach of the rules, so the client account is not left short: rule 6.1.
- Return client money promptly once there is no longer any proper reason to hold it: rule 2.5.
- The COFA must keep a central record of any breaches of the rules.
- Report serious breaches to the SRA promptly, in line with the reporting obligations in the SRA Codes of Conduct.
- Distinguish minor or technical breaches, which are recorded and remedied, from material breaches, which must be reported.
- Replacing the money does not by itself cure the breach; the underlying cause must also be addressed.
Key cases & statutes
rule 6.1 (correcting breaches)shortfall replacementrule 2.5 (prompt return)COFA record of breachesreporting serious breaches to the SRAmaterial vs minor breach
Where candidates lose marks
- Delaying the correction of a client-account shortfall.
- Failing to record a breach or to report a material one to the SRA.
- Assuming that replacing the money remedies the breach without fixing the cause.
Reconciliations & record-keeping
Regular reconciliations and complete accounting records demonstrate that client money is intact and properly accounted for.
- Keep accurate, contemporaneous and chronological records of all dealings with client money: rule 8.1.
- Complete a reconciliation of every client account at least every five weeks: rule 8.3.
- The reconciliation is a three-way check: the bank or building society statement balance, the cash book balance, and the total of the client ledger balances must agree.
- The reconciliation must be signed off by the COFA or a manager of the firm: rule 8.3.
- Promptly investigate and resolve any differences shown by the reconciliation.
- Retain accounting records, including reconciliations and bank statements, for at least six years: rule 13.
- Obtain an accountant's report within six months of the end of the accounting period, and deliver it to the SRA if it is qualified: rule 12 (subject to exemptions for low-value holdings and Legal Aid Agency money).
Key cases & statutes
rule 8.1 (accurate records)rule 8.3 (five-week reconciliation)three-way reconciliationCOFA sign-offrule 13 (six-year retention)rule 12 (accountant's report)accountant's report exemption
Where candidates lose marks
- Missing the five-week deadline for a client-account reconciliation.
- Leaving reconciliation differences unresolved.
- Failing to obtain or, where qualified, to deliver the accountant's report.
FLK2 · Subject 10 of 13
SQE1 Land Law
Land Law covers estates and interests in land, legal and equitable interests, co-ownership, leases, easements, covenants, mortgages and the rules of priority in both registered and unregistered land. It is conceptual and heavily case- and statute-based, and priority questions are a reliable source of marks.
How Land Law is examined
Questions ask whether an interest is legal or equitable, whether a lease or easement has been created, whether a covenant runs, or whose interest takes priority. The 1925 legislation and the Land Registration Act 2002 are central.
How to revise it
- Master the difference between legal and equitable interests and the formalities for each.
- Know how easements and covenants are created and run.
- Be fluent in priority — overriding interests in registered land, and land charges in unregistered land.
The 9 Land Law subtopics
Estates & interests in land
An estate in land measures a person's entitlement in terms of duration; only two legal estates now exist. Interests in land are rights one person holds over land owned by another.
- LPA 1925 s.1(1): only two legal estates capable of subsisting at law — the fee simple absolute in possession (freehold) and the term of years absolute (leasehold).
- All other ownership rights take effect in equity only (LPA 1925 s.1(3)), typically behind a trust.
- 'In possession' includes receipt of rents and profits, so a freehold reversion subject to a lease still counts as in possession.
- Distinguish real property (land) from personalty; fixtures pass with the land, chattels do not.
- Fixtures test: degree of annexation and purpose of annexation — Holland v Hodgson; purpose is the dominant factor.
- Land includes the surface, airspace to the height necessary for ordinary use, and subsoil, subject to statutory limits.
- Corporeal hereditaments (physical land) are distinguished from incorporeal hereditaments (rights such as easements).
Key cases & statutes
LPA 1925 s.1(1)LPA 1925 s.1(2)LPA 1925 s.1(3)LPA 1925 s.205Holland v Hodgson (1872)Elitestone v Morris [1997]Bernstein v Skyviews [1978]TSB Bank v Botham [1996]
Where candidates lose marks
- Do not treat a life interest as a legal estate — since 1925 it can only exist in equity.
- Do not confuse 'in possession' with physical occupation; receipt of rent qualifies.
- Applying only the degree-of-annexation test and ignoring purpose when classifying fixtures.
Legal & equitable interests
Whether an interest is legal or equitable determines both its creation formalities and how it binds later owners. The distinction runs through the whole of land law.
- LPA 1925 s.1(2) lists the only interests capable of being legal: easements/profits for an estate equivalent, charges by way of legal mortgage, and certain rentcharges/rights of entry.
- A legal interest generally requires a deed (LPA 1925 s.52) and, where registered land, completion by registration (LRA 2002 s.27) for dispositions required to be registered.
- Equitable interests arise where the s.1(2) requirements are not met, under a trust, or from a specifically enforceable contract (Walsh v Lonsdale).
- A deed must be clear on its face that it is a deed, be signed, witnessed and delivered (LP(MP)A 1989 s.1).
- An estate contract must comply with LP(MP)A 1989 s.2: in writing, incorporating all agreed terms, signed by both parties.
- Legal rights historically bound the world; equitable rights bound all except a bona fide purchaser of a legal estate for value without notice (the equity's darling).
- In registered land the doctrine of notice is largely replaced by the registration/overriding-interest scheme.
Key cases & statutes
LPA 1925 s.1(2)LPA 1925 s.52LP(MP)A 1989 s.1LP(MP)A 1989 s.2LRA 2002 s.27Walsh v Lonsdale (1882)Pilcher v Rawlins (1872)Kingsnorth Finance v Tizard [1986]
Where candidates lose marks
- Assuming a right is legal without checking both s.1(2) status and the required formalities.
- Forgetting that a registrable disposition is not legal until registered (LRA 2002 s.27).
- Applying the bona fide purchaser doctrine to registered land, where the LRA priority rules govern instead.
Co-ownership & trusts of land
Where two or more people own land together, the legal estate is always held on a trust of land. TOLATA 1996 governs the powers of trustees and resolution of disputes.
- Two forms of co-ownership: joint tenancy (no distinct shares, right of survivorship) and tenancy in common (distinct undivided shares, no survivorship).
- The four unities (possession, interest, title, time) must all be present for a joint tenancy; only unity of possession is needed for a tenancy in common.
- The legal title can only ever be held as a joint tenancy (LPA 1925 s.1(6), s.36(2)) and cannot be severed; maximum four legal trustees.
- The equitable title may be a joint tenancy or a tenancy in common; equity leans towards a tenancy in common (e.g. unequal contributions, business partners, express words of severance).
- Severance of an equitable joint tenancy (LPA 1925 s.36(2)) by written notice, or by the methods in Williams v Hensman: acting on one's share, mutual agreement, or a course of dealing.
- TOLATA 1996 s.12–13 give beneficiaries a right to occupy; s.14 lets any trustee or person with an interest apply to court; s.15 lists the factors the court weighs.
- On a s.14 application the court considers the settlor's intentions, the purpose of the trust, the welfare of any minor occupier, and the interests of secured creditors.
Key cases & statutes
LPA 1925 s.36(2)LPA 1925 s.34-36TOLATA 1996 s.14TOLATA 1996 s.15Williams v Hensman (1861)Goodman v Gallant [1986]Burgess v Rawnsley [1975]Kinch v Bullard [1999]
Where candidates lose marks
- Suggesting the legal joint tenancy can be severed — only the equitable interest can be severed.
- Treating survivorship as applying to a tenancy in common; it applies only to joint tenancies.
- Overlooking that unlawful killing severs a joint tenancy in equity (forfeiture rule).
Leases & licences
A lease grants exclusive possession for a term and is a proprietary estate; a licence is only a personal permission. Correct classification determines whether third parties are bound and whether statutory protection applies.
- Three hallmarks of a lease (Street v Mountford): exclusive possession, for a term, at a rent (rent is usual but not strictly essential — Ashburn Anstalt).
- Substance prevails over the label the parties give the agreement; a document called a 'licence' may still create a lease.
- Sham or pretence clauses purporting to deny exclusive possession are disregarded (Antoniades v Villiers).
- A legal lease over three years must be granted by deed (LPA 1925 s.52); leases over seven years must be registered (LRA 2002 s.27).
- Short leases of three years or less taking effect in possession at best rent without a fine are legal without a deed (LPA 1925 s.54(2)).
- A contract for a lease that fails as a legal grant may take effect as an equitable lease if it satisfies LP(MP)A 1989 s.2 and specific performance is available (Walsh v Lonsdale).
- No exclusive possession where the occupier is a lodger, there is a service occupancy, or entry is under a genuine act of friendship/charity (no intention to create legal relations).
Key cases & statutes
Street v Mountford [1985]LPA 1925 s.54(2)LPA 1925 s.52LRA 2002 s.27AG Securities v Vaughan [1990]Antoniades v Villiers [1990]Ashburn Anstalt v Arnold [1989]Prudential Assurance v London Residuary Body [1992]
Where candidates lose marks
- Accepting the parties' 'licence' label instead of analysing exclusive possession.
- Forgetting the term must be certain in duration (Prudential Assurance) for a valid lease.
- Missing that a periodic tenancy can arise by implication from possession and payment of rent.
Leasehold covenants
Leasehold covenants are the promises in a lease that regulate the parties' conduct. Whether they bind assignees depends on when the lease was granted.
- Leases granted on or after 1 January 1996 are governed by the Landlord and Tenant (Covenants) Act 1995: covenants pass automatically on assignment (s.3) unless expressed to be personal.
- Under the 1995 Act the outgoing tenant is released on a lawful assignment (s.5) but may be required to give an authorised guarantee agreement (AGA) (s.16).
- Pre-1996 leases follow privity of contract and privity of estate: the original tenant remains liable throughout the term, and covenants pass to assignees if they 'touch and concern' the land (Spencer's Case).
- Key implied/usual covenants: quiet enjoyment, not to derogate from grant, and (in many leases) the landlord's repairing obligations.
- Forfeiture requires a right of re-entry in the lease; for non-rent breaches a valid s.146 notice (LPA 1925) must first be served, giving the tenant a chance to remedy.
- Relief from forfeiture may be granted to the tenant and, in some cases, to subtenants and mortgagees.
- Assignment of covenants restricting user or alienation are commonly qualified — consent 'not to be unreasonably withheld' (Landlord and Tenant Act 1927 s.19).
Key cases & statutes
Landlord and Tenant (Covenants) Act 1995 s.3L&T (Covenants) Act 1995 s.5L&T (Covenants) Act 1995 s.16LPA 1925 s.146Landlord and Tenant Act 1927 s.19Spencer's Case (1583)P&A Swift Investments v Combined English Stores [1989]Billson v Residential Apartments [1992]
Where candidates lose marks
- Applying privity of contract to a post-1995 lease — the original tenant is generally released on assignment.
- Forgetting a s.146 notice is required for non-rent breaches before forfeiture.
- Treating peaceable re-entry to residential premises as available; it is restricted by statute.
Easements & profits
An easement is a right enjoyed by one piece of land over neighbouring land; a profit à prendre is a right to take something from another's land. Both can be legal or equitable.
- The four Re Ellenborough Park characteristics: a dominant and servient tenement, the right must accommodate the dominant land, diversity of ownership/occupation, and the right must be capable of forming the subject matter of a grant.
- An easement cannot amount to exclusive or joint occupation of the servient land (Batchelor v Marlow / Moncrieff v Jamieson debate on car parking).
- Acquisition: express grant/reservation by deed; implied grant (necessity, common intention, the rule in Wheeldon v Burrows, or LPA 1925 s.62); or prescription (long use).
- Wheeldon v Burrows implies into a grant quasi-easements that are continuous and apparent, necessary for reasonable enjoyment, and in use at the date of the transfer.
- LPA 1925 s.62 can convert a licence or precarious right into an easement on a conveyance where there was prior diversity of occupation.
- Prescription requires use as of right (nec vi, nec clam, nec precario) for the period — common law, lost modern grant, or the Prescription Act 1832.
- A legal easement in registered land granted after first registration must be registered (LRA 2002 s.27); certain impliedly created easements can be overriding under Sch 3 para 3.
Key cases & statutes
Re Ellenborough Park [1956]LPA 1925 s.62Wheeldon v Burrows (1879)Prescription Act 1832LRA 2002 s.27LRA 2002 Sch 3 para 3Moncrieff v Jamieson [2007]Regency Villas v Diamond Resorts [2018]
Where candidates lose marks
- Claiming an easement where the dominant and servient land are in common ownership and occupation.
- Confusing the Wheeldon v Burrows conditions with the operation of LPA 1925 s.62.
- Overlooking that a right amounting to exclusive possession cannot be an easement.
Freehold covenants
Freehold covenants are promises between freehold owners about the use of land. The burden of a covenant runs only in equity and only under strict conditions.
- The benefit of a covenant may pass at common law if it touches and concerns the land, the covenantee held a legal estate, the assignee holds a legal estate, and the benefit was annexed, assigned or through a building scheme.
- The burden does not run at common law (Austerberry v Oldham; Rhone v Stephens) — a successor is not bound at law by a positive covenant.
- The burden of a restrictive (negative) covenant runs in equity under Tulk v Moxhay: the covenant must be negative, touch and concern the land, be intended to run, and the buyer must have notice (registration in modern law).
- Annexation of the benefit in equity may be express, implied, or statutory under LPA 1925 s.78 (Federated Homes).
- A building/development scheme allows mutual enforceability among plot owners (Elliston v Reacher conditions).
- Positive covenants can be indirectly enforced via the doctrine of mutual benefit and burden (Halsall v Brizell), chains of indemnity covenants, or a right of re-entry.
- Restrictive covenants are protected in registered land by a notice; in unregistered land by a Class D(ii) land charge.
Key cases & statutes
Tulk v Moxhay (1848)Rhone v Stephens [1994]Austerberry v Oldham (1885)LPA 1925 s.78LPA 1925 s.79Federated Homes v Mill Lodge [1980]Halsall v Brizell [1957]Elliston v Reacher [1908]
Where candidates lose marks
- Asserting that a positive covenant binds a successor — the burden of positive covenants does not run.
- Forgetting that the burden runs only in equity, so the covenantee needs an equitable route to enforce.
- Ignoring the registration requirement, without which a restrictive covenant may not bind a purchaser.
Mortgages
A mortgage is a security interest over land securing a debt. The law protects the borrower's equity of redemption while giving the lender enforcement remedies.
- A legal mortgage of registered land is created by a charge by deed expressed to be by way of legal mortgage and must be completed by registration (LPA 1925 s.87; LRA 2002 s.27).
- The borrower's equity of redemption is protected: no clogs or fetters on the right to redeem, and an option to purchase contained within the mortgage itself is void (Samuel v Jarrah Timber and Wood Paving Corp Ltd [1904]) — though a genuinely separate, later option can be valid (Reeve v Lisle).
- Postponement of redemption and collateral advantages are valid only if not unconscionable or a restraint of trade (Knightsbridge Estates; Kreglinger).
- Lender's remedies: sue on the covenant to repay, possession, sale, appointment of a receiver, and foreclosure (now rare).
- The power of sale must have arisen (legal mortgage by deed, mortgage money due) and become exercisable (s.103 conditions) before it is used (LPA 1925 ss.101, 103).
- On sale the mortgagee must take reasonable care to obtain a proper price (Cuckmere Brick v Mutual Finance); proceeds are applied under LPA 1925 s.105.
- Possession of a dwelling is regulated: the court may adjourn or suspend under the Administration of Justice Acts 1970 s.36 and 1973 s.8 where sums can be repaid in a reasonable period.
Key cases & statutes
LPA 1925 s.85-87LPA 1925 s.101LPA 1925 s.103LPA 1925 s.105Administration of Justice Act 1970 s.36Cuckmere Brick v Mutual Finance [1971]Kreglinger v New Patagonia [1914]Fairclough v Swan Brewery [1912]
Where candidates lose marks
- Confusing when the power of sale arises (s.101) with when it becomes exercisable (s.103).
- Suggesting the lender owes a general fiduciary duty on sale — the duty is to take reasonable care as to price.
- Overlooking undue influence: a lender may be fixed with notice where a surety charges the home (Etridge).
Priority of interests
Priority determines which competing interest prevails when land changes hands. The rules differ fundamentally between registered and unregistered land.
- Registered land basic rule (LRA 2002 s.28): priority is determined by order of creation, subject to the special rule for registrable dispositions.
- LRA 2002 s.29: a registrable disposition made for valuable consideration and completed by registration postpones prior interests unless protected — by a notice on the register, as a registered charge, or as an overriding interest.
- Overriding interests bind a purchaser without appearing on the register: LRA 2002 Sch 3 includes short legal leases (7 years or less), interests of persons in actual occupation, and certain legal easements.
- A person in actual occupation is protected only as to the interest they hold and only where occupation is obvious on a reasonably careful inspection or actually known (Sch 3 para 2).
- Minor interests must be protected by entry of a notice (or a restriction to control dispositions); otherwise they are lost to a s.29 purchaser (Williams & Glyn's Bank v Boland).
- Unregistered land: legal rights bind the world; most equitable interests must be registered as land charges under the Land Charges Act 1972 (e.g. estate contracts Class C(iv), restrictive covenants Class D(ii)).
- An unregistered land charge that is registrable but not registered is void against a purchaser (Midland Bank v Green — even at an undervalue if for money/money's worth).
Key cases & statutes
LRA 2002 s.28LRA 2002 s.29LRA 2002 Sch 3 para 1-3Land Charges Act 1972 s.4Williams & Glyn's Bank v Boland [1981]Abbey National v Cann [1991]Midland Bank Trust v Green [1981]City of London BS v Flegg [1988]
Where candidates lose marks
- Applying the doctrine of notice to registered land instead of the LRA priority and overriding-interest rules.
- Assuming actual occupation always protects — the timing (Cann) and obviousness requirements can defeat it.
- Forgetting overreaching: a beneficial interest under a trust of land is overreached where capital is paid to two trustees (Flegg).
FLK2 · Subject 11 of 13
SQE1 Trusts
Trusts covers express trusts and the three certainties, the formalities for creating and constituting a trust, resulting and constructive trusts (including the family home), trustees' powers and duties, and the remedies for breach of trust including tracing. It is one of the more technical FLK2 subjects.
How Trusts is examined
Questions ask whether a valid trust exists, whether the certainties are satisfied, whether a resulting or constructive trust arises, or what remedy a beneficiary has for a breach. Family-home cases are a frequent theme.
How to revise it
- Learn the three certainties and the consequences of each failing.
- Know when resulting and constructive trusts arise, and the family-home case law.
- Understand the personal and proprietary remedies for breach, and the basics of tracing.
The 8 Trusts subtopics
Express trusts & the three certainties
An express trust arises where a settlor deliberately creates a trust. For a valid express trust the three certainties must all be present.
- Knight v Knight requires three certainties: certainty of intention, certainty of subject matter, and certainty of objects.
- Certainty of intention looks to whether the settlor intended to impose a binding obligation; precatory words ('in the hope', 'wish') generally do not create a trust (Lambe v Eames).
- Certainty of subject matter requires both the trust property and the beneficial shares to be identifiable; tangible property must be segregated (Re London Wine) but identical intangibles may not need segregation (Hunter v Moss).
- Certainty of objects for a fixed trust requires a complete list of beneficiaries (IRC v Broadway Cottages).
- Certainty of objects for a discretionary trust uses the 'is or is not' / given postulant test (McPhail v Doulton): can it be said with certainty whether any given individual is or is not a member of the class.
- A discretionary trust may still fail for administrative unworkability or capriciousness even if conceptually certain (R v District Auditor ex p West Yorkshire).
- Failure of certainty of intention means no trust (donee keeps property); failure of subject matter or objects generally means a resulting trust back to the settlor.
Key cases & statutes
Knight v Knight (1840)Lambe v Eames (1871)Re London Wine Co [1986]Hunter v Moss [1994]IRC v Broadway Cottages [1955]McPhail v Doulton [1971]Re Baden's Deed Trusts (No 2) [1973]Paul v Constance [1977]
Where candidates lose marks
- Applying the complete-list test to a discretionary trust — the McPhail 'is or is not' test governs there.
- Treating precatory words as automatically creating a trust; they usually do not.
- Confusing conceptual certainty with evidential certainty or administrative workability.
Formalities & constitution
Formalities are the writing and signature requirements for certain trusts; constitution is the transfer of the trust property to the trustees. A trust must be properly declared and completely constituted to be enforceable.
- A declaration of trust respecting land must be manifested and proved by signed writing (LPA 1925 s.53(1)(b)); the writing is evidential and may post-date the declaration.
- A disposition of a subsisting equitable interest must itself be in signed writing (LPA 1925 s.53(1)(c)) — Grey v IRC; Vandervell v IRC.
- Constitution of a trust of a legal estate requires the correct method of transfer to the trustee (Milroy v Lord): e.g. a deed and registration for land, share transfer form and registration for shares.
- Equity will not perfect an imperfect gift and will not assist a volunteer; an incompletely constituted trust of which the intended beneficiary gave no consideration is generally unenforceable.
- Exceptions where equity intervenes: the 'every effort' rule (Re Rose), the rule in Strong v Bird, donatio mortis causa, and unconscionability (Pennington v Waine).
- A self-declaration of trust needs no transfer — the settlor already holds the property — but must be a present, binding declaration, not a failed gift (Jones v Lock).
- Testamentary trusts must comply with the Wills Act 1837 s.9 (writing, signature, two witnesses).
Key cases & statutes
LPA 1925 s.53(1)(b)LPA 1925 s.53(1)(c)Milroy v Lord (1862)Re Rose [1952]Strong v Bird (1874)Pennington v Waine [2002]Grey v IRC [1960]Wills Act 1837 s.9
Where candidates lose marks
- Confusing s.53(1)(b) (declaration of trust of land — evidential writing) with s.53(1)(c) (disposition of an equitable interest — writing required for validity).
- Trying to save a failed outright gift by reinterpreting it as a self-declaration of trust (Jones v Lock).
- Overlooking that s.53(2) exempts resulting, implied and constructive trusts from the writing formalities.
Purpose & charitable trusts
A private purpose trust for a non-charitable purpose is generally void. Charitable purpose trusts are valid and enjoy special advantages if they satisfy the Charities Act criteria.
- The beneficiary principle: a trust must have ascertainable human beneficiaries who can enforce it (Morice v Bishop of Durham); a non-charitable purpose trust usually fails.
- Limited anomalous exceptions (trusts of imperfect obligation): maintenance of specific animals, tombs/monuments, and certain private purposes — Re Endacott — and these are not to be extended.
- A gift to an unincorporated association is usually construed as a gift to members subject to the contractual rules of the association (Re Recher's Will Trusts).
- Charities Act 2011 s.3 lists the recognised charitable purposes (e.g. prevention of poverty, advancement of education, religion, health); s.4 requires public benefit.
- A charitable trust must be exclusively charitable — mixed charitable and non-charitable purposes generally fail unless the non-charitable part is incidental.
- Public benefit must be shown; a personal nexus between beneficiaries (e.g. employees of one company) usually defeats it (Oppenheim v Tobacco Securities).
- Charitable trusts need not satisfy certainty of objects in the same way, may be perpetual, and failed gifts may be applied cy-près.
Key cases & statutes
Morice v Bishop of Durham (1804)Re Endacott [1960]Re Denley's Trust Deed [1969]Re Recher's Will Trusts [1972]Charities Act 2011 s.3Charities Act 2011 s.4Oppenheim v Tobacco Securities Trust [1951]IRC v Baddeley [1955]
Where candidates lose marks
- Assuming any worthwhile purpose is charitable — it must fall within a s.3 head and satisfy public benefit.
- Extending the anomalous purpose-trust exceptions beyond the established categories.
- Forgetting the exclusivity requirement where a trust mixes charitable and non-charitable objects.
Resulting & constructive trusts
Resulting and constructive trusts arise by operation of law rather than express declaration. They are exempt from the writing formalities under LPA 1925 s.53(2).
- Automatic resulting trust: where an express trust fails or does not exhaust the beneficial interest, the equitable interest results back to the settlor (Vandervell v IRC).
- Presumed resulting trust: a voluntary transfer or contribution to the purchase price raises a presumption of a trust in favour of the provider (Dyer v Dyer), rebuttable by evidence of intention or the presumption of advancement.
- The presumption of advancement (gifts from father/husband) still exists but is weak and legislatively due for abolition; it is readily rebutted by evidence.
- A constructive trust is imposed to prevent unconscionable retention of property — including where a defendant's conscience is affected or through a common intention.
- Institutional constructive trusts arise by operation of law from the facts; English law does not generally recognise the remedial constructive trust (FHR European Ventures v Cedar Capital).
- A fiduciary who makes an unauthorised profit or takes a bribe holds it on constructive trust for the principal (Boardman v Phipps; FHR European Ventures).
- The Pallant v Morgan equity and Rochefoucauld v Boustead show constructive trusts preventing statute or agreements being used as an instrument of fraud.
Key cases & statutes
LPA 1925 s.53(2)Vandervell v IRC [1967]Dyer v Dyer (1788)Westdeutsche Landesbank v Islington LBC [1996]Boardman v Phipps [1967]FHR European Ventures v Cedar Capital [2014]Rochefoucauld v Boustead [1897]Paragon Finance v Thakerar [1999]
Where candidates lose marks
- Treating the presumption of advancement as strong; modern courts rebut it readily.
- Assuming English law recognises a general remedial constructive trust — it does not.
- Forgetting that resulting and constructive trusts escape the s.53(1) writing requirements via s.53(2).
Trusts of the family home
Where a family home is held in the name of one or both parties without an express declaration of the beneficial shares, equity uses common intention constructive trusts (and sometimes resulting trusts) to determine ownership.
- An express declaration of the beneficial interests in the transfer is conclusive absent fraud or mistake (Goodman v Gallant).
- Sole legal owner cases (Lloyds Bank v Rosset): a claimant must show a common intention to share plus detrimental reliance — either an express agreement, or (traditionally) direct financial contributions.
- Joint legal ownership cases start from a presumption of joint beneficial ownership: 'equity follows the law' (Stack v Dowden; Jones v Kernott).
- That presumption can be displaced by evidence of a different common intention, judged on the whole course of dealing between the parties.
- Where intention as to shares cannot be deduced, the court may impute a fair share having regard to the whole course of dealing (Jones v Kernott).
- The Stack v Dowden factors include how the purchase was financed, whether finances were kept separate, and the parties' conduct over time.
- Proprietary estoppel is an alternative route: an assurance, reliance and detriment making it unconscionable to deny an interest (Thorner v Major; Guest v Guest on remedy).
Key cases & statutes
Stack v Dowden [2007]Jones v Kernott [2011]Lloyds Bank v Rosset [1991]Oxley v Hiscock [2004]Goodman v Gallant [1986]Thorner v Major [2009]Guest v Guest [2022]TOLATA 1996 s.14
Where candidates lose marks
- Applying the Stack v Dowden joint-ownership presumption to a sole-legal-owner case, where Rosset principles are the starting point.
- Confusing 'inferring' an actual common intention with 'imputing' a fair share (only permitted at the quantification stage).
- Treating minor domestic contributions as sufficient for an interest in a sole-owner case without an express agreement.
Trustees' powers & duties
Trustees hold and administer the trust property subject to statutory and equitable duties and powers. The Trustee Act 2000 modernised much of this framework.
- Core fiduciary duties: act in the best interests of the beneficiaries, avoid conflicts of interest, and not profit from the trust without authority (Bristol & West BS v Mothew).
- The statutory duty of care (Trustee Act 2000 s.1) requires such care and skill as is reasonable in the circumstances, higher for professional trustees.
- General power of investment (Trustee Act 2000 s.3) allows any kind of investment as if absolutely entitled, subject to standard investment criteria (s.4) and the duty to take advice (s.5).
- Trustees must act unanimously (unless the trust provides otherwise), act personally, but may delegate certain functions collectively under Trustee Act 2000 Part IV to agents, nominees and custodians.
- Duty to act impartially between beneficiaries (income vs capital) and to keep accounts and provide information; disclosure of trust documents is discretionary (Schmidt v Rosewood).
- Powers of maintenance (Trustee Act 1925 s.31) and advancement (s.32, now up to the whole of a beneficiary's presumptive share) support minor and adult beneficiaries.
- Trustees may be paid only if authorised by the trust, statute (Trustee Act 2000 ss.28–29 for professional/trust-corporation trustees), the beneficiaries, or the court.
Key cases & statutes
Trustee Act 2000 s.1Trustee Act 2000 s.3-5Trustee Act 2000 s.11Trustee Act 1925 s.31Trustee Act 1925 s.32Bristol & West BS v Mothew [1998]Speight v Gaunt (1883)Schmidt v Rosewood Trust [2003]
Where candidates lose marks
- Applying the same standard of care to lay and professional trustees — s.1 sets a higher bar for professionals.
- Assuming trustees may always charge for their services; remuneration needs authority.
- Overlooking the standard investment criteria and the duty to obtain and review advice under the Trustee Act 2000.
Breach of trust & remedies
A breach of trust is a failure by a trustee to carry out their duties. Beneficiaries have a range of personal and proprietary remedies.
- A trustee in breach is personally liable to restore the trust fund (equitable compensation); causation is assessed on a 'but for' basis judged at the date of judgment (Target Holdings v Redferns; AIB v Redler).
- Liability is generally for the loss caused by the breach; trustees are not insurers of the fund where loss would have occurred anyway.
- Trustees are liable jointly and severally; a trustee who pays may seek contribution from co-trustees (Civil Liability (Contribution) Act 1978).
- Defences: an exemption clause (valid even for gross negligence but not fraud — Armitage v Nurse), consent/acquiescence by a fully-informed beneficiary, and the court's power to relieve where the trustee acted honestly and reasonably (Trustee Act 1925 s.61).
- Limitation: generally six years (Limitation Act 1980 s.21(3)), but no limitation period for fraudulent breach or recovery of trust property still in the trustee's hands (s.21(1)).
- Proprietary remedies allow the beneficiary to recover the trust property or its traceable proceeds and to take any increase in value.
- Personal claims may also lie against knowing recipients and dishonest assistants (third-party liability).
Key cases & statutes
Target Holdings v Redferns [1996]AIB Group v Mark Redler [2014]Armitage v Nurse [1998]Trustee Act 1925 s.61Limitation Act 1980 s.21Civil Liability (Contribution) Act 1978Nestle v National Westminster Bank [1993]Bartlett v Barclays Bank [1980]
Where candidates lose marks
- Assuming any breach makes the trustee liable for all subsequent loss regardless of causation.
- Thinking an exemption clause can excuse actual fraud or dishonesty — Armitage v Nurse limits it to short of fraud.
- Applying the six-year limitation period to a fraudulent breach or to trust property retained by the trustee.
Tracing & third-party liability
Tracing identifies trust property or its substitute in another's hands; third-party liability targets strangers who receive trust property or assist a breach. These extend recovery beyond the trustee.
- Tracing is a process of identifying value, not a remedy; equitable tracing requires an initial fiduciary relationship and can follow property into mixed funds.
- Mixing trust money with a trustee's own money: the beneficiary may charge the whole fund and the trustee is presumed to spend their own money first (Re Hallett), or claim a proportionate share of an asset bought (Foskett v McKeown).
- Where the wrongdoer's own money runs out, the beneficiary may claim the traceable proceeds still identifiable (Re Oatway); loss of the identifiable fund ends tracing.
- For mixing between two innocent claimants in a bank account the default rule is 'first in, first out' (Clayton's Case), often displaced by a pari passu (proportionate) approach (Barlow Clowes v Vaughan).
- Knowing receipt (a personal claim): the defendant received trust property for their own benefit, in breach of trust, with knowledge making retention unconscionable (BCCI v Akindele).
- Dishonest assistance (a personal claim): a stranger who dishonestly assists a breach of trust is liable even if they never received trust property; dishonesty is judged by the objective standard (Royal Brunei v Tan; Ivey v Genting).
- The bona fide purchaser of the legal interest for value without notice takes free, defeating an equitable tracing claim.
Key cases & statutes
Foskett v McKeown [2001]Re Hallett's Estate (1880)Re Oatway [1903]Clayton's Case (1816)Barlow Clowes v Vaughan [1992]BCCI v Akindele [2001]Royal Brunei Airlines v Tan [1995]Ivey v Genting Casinos [2017]
Where candidates lose marks
- Treating tracing as a remedy in itself rather than a process that identifies property to which a remedy attaches.
- Confusing knowing receipt (requires receipt for own benefit) with dishonest assistance (requires no receipt but requires dishonesty).
- Applying Clayton's Case rigidly where it produces injustice; courts favour a proportionate approach (Barlow Clowes).
FLK2 · Subject 12 of 13
SQE1 Criminal Liability
Criminal Liability covers the elements of the core offences — against the person, property offences, fraud and criminal damage — together with the general defences and inchoate offences. It is about applying actus reus and mens rea to a factual scenario.
How Criminal Liability is examined
Questions describe an incident and ask which offence is made out, what the required mens rea is, whether causation is established, or whether a defence applies. The s.18/s.20 distinction and homicide are staples.
How to revise it
- Be precise on mens rea — the s.18 vs s.20 GBH distinction turns on intent.
- Know the elements of the Theft Act and Fraud Act offences.
- Learn the general defences and how intoxication interacts with them.
The 8 Criminal Liability subtopics
Actus reus & mens rea
A criminal offence is generally built from a physical element (actus reus) and a fault element (mens rea), which must usually coincide in time. The prosecution must prove every element of the actus reus and the required mens rea.
- Actus reus = the prohibited conduct, any required circumstances, and (in result crimes) the prohibited consequence.
- Omissions are not usually criminal, but liability arises where a duty to act exists: statute, contract, relationship, voluntary assumption, creation of a dangerous situation, or public office.
- Mens rea forms: intention (direct or oblique), recklessness, negligence, and knowledge/belief; the required state must match the specific offence.
- Oblique intent: a jury may find intention where the result was a virtual certainty of the defendant's act and the defendant appreciated that (Woollin).
- Recklessness is subjective: the defendant foresaw a risk and unreasonably went on to take it (Cunningham; confirmed in G).
- Actus reus and mens rea must coincide, but courts use the continuing act (Fagan) or single transaction (Thabo Meli) analysis to bridge gaps.
- Transferred malice: mens rea aimed at one victim/target transfers to the actual victim if the crime is the same type (Latimer); it does not transfer across different offence types (Pembliton).
Key cases & statutes
R v WoollinR v CunninghamR v G [2003] UKHL 50Fagan v Metropolitan Police CommissionerThabo Meli v RR v LatimerR v PemblitonR v Miller (duty from creating danger)R v Stone & Dobinson (assumed duty)
Where candidates lose marks
- Confusing oblique intention (a route to proving intent) with recklessness — Woollin is a foresight-of-virtual-certainty test, not a lower fault standard.
- Assuming recklessness is objective — since R v G it is subjective for criminal damage and most offences.
- Forgetting that coincidence of actus reus and mens rea can be satisfied by continuing act or single-transaction reasoning.
Causation
In result crimes the prosecution must prove that the defendant's conduct both factually and legally caused the prohibited consequence. Legal causation asks whether the defendant's act was a substantial and operating cause.
- Factual causation uses the 'but for' test: but for the defendant's act, would the result have occurred (White)?
- Legal causation requires the act to be a substantial (more than minimal) and operating cause; it need not be the sole cause.
- Take your victim as you find them — the thin skull rule covers physical and psychiatric conditions and religious beliefs (Blaue).
- A free, deliberate and informed act of a third party or the victim may break the chain of causation (novus actus interveniens).
- Medical treatment breaks the chain only if it is so independent and potent that the original wound is merely part of the history (Jordan; Smith; Cheshire).
- Victim's escape/self-neglect breaks the chain only if the response was not reasonably foreseeable (Roberts; Williams).
- Supplying drugs which the victim freely self-injects generally breaks the chain (Kennedy (No 2)).
Key cases & statutes
R v WhiteR v BlaueR v Smith [1959]R v CheshireR v JordanR v RobertsR v Kennedy (No 2)R v Pagett
Where candidates lose marks
- Treating any medical mistake as breaking the chain — only wholly independent, potent treatment does (Cheshire sets a high bar).
- Applying only factual causation — 'but for' alone is not enough; legal causation must also be established.
- Overlooking that the victim's own foreseeable reaction (e.g. jumping from a car) does not break the chain.
Offences against the person
Non-fatal offences against the person form a hierarchy from assault and battery up to wounding with intent, each with distinct actus reus and mens rea. Charging depends on the level of harm and the fault proved.
- Assault (common assault): causing the victim to apprehend immediate unlawful force; mens rea intention or recklessness (Ireland; words alone can suffice).
- Battery: infliction of unlawful force, however slight; mens rea intention or recklessness as to that force.
- s.47 ABH: an assault or battery that occasions actual bodily harm (more than trivial); no additional mens rea as to the harm needed (Savage).
- s.20 OAPA: unlawful wounding or inflicting grievous bodily harm; mens rea = intention or recklessness as to some harm, not the full extent (Mowatt).
- s.18 OAPA: wounding or causing GBH with intent to do GBH (or to resist arrest); a specific-intent offence.
- 'Wound' requires breaking of both layers of skin; 'GBH' means really serious harm (DPP v Smith) and can include serious psychiatric injury (Burstow).
- Consent is generally not a defence to ABH or above, subject to recognised exceptions (surgery, sport, tattooing, horseplay) (Brown; Wilson).
Key cases & statutes
s.18 OAPA 1861s.20 OAPA 1861s.47 OAPA 1861R v Ireland; R v BurstowR v Savage; DPP v ParmenterR v BrownR v WilsonCollins v Wilcock (battery)
Where candidates lose marks
- Confusing s.20 and s.18 — both can involve GBH, but s.18 requires intent to cause GBH (recklessness will not do).
- Thinking s.20/s.47 require the defendant to foresee the actual level of harm — only some harm (s.20) or the initial assault/battery (s.47) need be foreseen.
- Assuming consent negates liability for serious harm — it generally does not outside recognised exceptions.
Homicide: murder & manslaughter
Unlawful homicide is murder or manslaughter, sharing the actus reus of unlawfully causing death but differing in fault and available partial defences. The partial defences to murder reduce it to voluntary manslaughter.
- Murder: unlawfully causing death with malice aforethought, i.e. intention to kill or to cause GBH (Vickers; Cunningham).
- Loss of control (ss.54-55 Coroners and Justice Act 2009): loss of self-control from a qualifying trigger (fear of serious violence and/or things done/said of an extremely grave character giving a justifiable sense of being seriously wronged); sexual infidelity is excluded as a trigger.
- Diminished responsibility (s.2 Homicide Act 1957 as amended): abnormality of mental functioning from a recognised medical condition, substantially impairing ability to understand conduct, form rational judgment or exercise self-control, and providing an explanation for the killing.
- Unlawful act (constructive) manslaughter: an intentional, objectively dangerous criminal act causing death; the base crime's mens rea is required, not foresight of death (Church; Newbury).
- Gross negligence manslaughter: duty of care, breach, risk of death, causation, and negligence so gross as to be criminal (Adomako; Broughton on causation).
- The unlawful act must be a crime, not merely a civil wrong or an omission (Lowe); a lawful act done negligently cannot found constructive manslaughter.
- For loss of control and diminished responsibility the burden of proof differs: prosecution must disprove loss of control once raised; defendant bears the (balance of probabilities) burden for diminished responsibility.
Key cases & statutes
s.54-55 Coroners and Justice Act 2009s.2 Homicide Act 1957R v VickersR v AdomakoR v ChurchDPP v Newbury & JonesR v LoweR v Woollin (intention for murder)
Where candidates lose marks
- Stating murder needs intent to kill — intent to cause GBH suffices.
- Confusing the two partial defences — loss of control and diminished responsibility have different elements and different burdens of proof.
- Using an omission for unlawful act manslaughter — it requires a positive unlawful criminal act; omissions go to gross negligence manslaughter.
Theft, robbery & burglary
Theft and its aggravated forms, robbery and burglary, are property offences under the Theft Act 1968. Each builds on the core definition of theft or on trespassory entry.
- Theft (s.1): dishonest appropriation of property belonging to another with intention permanently to deprive.
- Appropriation (s.3) is any assumption of the rights of an owner and can occur even with the owner's consent (Gomez) or in respect of a valid gift (Hinks).
- 'Belonging to another' (s.5) includes possession or control, and property received under an obligation to deal with it in a particular way (s.5(3)).
- Dishonesty: apply the Ivey v Genting test — ascertain the defendant's actual state of knowledge/belief, then ask whether conduct was dishonest by ordinary standards; s.2(1) sets out three situations that are not dishonest.
- Robbery (s.8): theft plus force or putting/seeking to put a person in fear of force, used immediately before or at the time of stealing and in order to steal.
- Burglary (s.9(1)(a)): entering a building/part as a trespasser with intent to steal, inflict GBH or cause criminal damage; (s.9(1)(b)): having entered as a trespasser, stealing/attempting or inflicting/attempting GBH.
- Aggravated burglary (s.10): burglary while having with them a weapon of offence, firearm, imitation firearm or explosive.
Key cases & statutes
s.1 Theft Act 1968s.2-6 Theft Act 1968s.8 Theft Act 1968 (robbery)s.9 Theft Act 1968 (burglary)s.10 Theft Act 1968Ivey v Genting CasinosR v GomezR v HinksR v Ghosh (superseded on dishonesty)
Where candidates lose marks
- Still applying the old Ghosh two-stage subjective limb — Ivey v Genting removed the requirement that the defendant realise conduct was dishonest by ordinary standards.
- Overlooking the timing/purpose requirement in robbery — force must be used at the time of or immediately before the theft and in order to steal.
- Confusing s.9(1)(a) and s.9(1)(b) burglary — the intent is assessed at entry for (a) but on the later act for (b).
Fraud & criminal damage
Fraud under the Fraud Act 2006 is a conduct offence requiring dishonesty and intent to gain or cause loss, with no need to prove that anyone was actually deceived. Criminal damage protects property under the Criminal Damage Act 1971.
- Fraud (s.1 Fraud Act 2006) is committed by false representation (s.2), failing to disclose information where under a legal duty (s.3), or abuse of position (s.4).
- Fraud by false representation: a dishonest false representation (express or implied, as to fact or law, including as to state of mind) made with intent to make a gain or cause loss/risk of loss; the offence is complete when the representation is made.
- A representation can be made to a machine or system (s.2(5)); no victim need actually be deceived and no gain need result.
- Dishonesty for fraud is assessed on the Ivey v Genting test; 'gain' and 'loss' (s.5) are limited to money or other property.
- Criminal damage (s.1(1) Criminal Damage Act 1971): destroying or damaging property belonging to another, intending or being reckless as to that damage, without lawful excuse.
- Aggravated criminal damage (s.1(2)) adds intention/recklessness as to endangering life by the damage; s.1(3) covers arson (damage by fire).
- Lawful excuse (s.5): honest belief in consent, or acting to protect property with a belief that protection was immediately necessary and reasonable; the belief need not be reasonable if honestly held.
Key cases & statutes
s.1 Fraud Act 2006s.2 Fraud Act 2006s.3 Fraud Act 2006s.4 Fraud Act 2006s.1(1) Criminal Damage Act 1971s.1(2) Criminal Damage Act 1971s.5 Criminal Damage Act 1971Ivey v Genting CasinosR v Ghosh (superseded)
Where candidates lose marks
- Requiring proof that the victim was actually deceived or suffered loss — fraud by false representation is complete on making the dishonest representation with intent.
- Forgetting arson is charged under the Criminal Damage Act 1971 (s.1 with s.1(3)), not a separate statute.
- Assuming a s.5 lawful excuse belief must be reasonable — an honestly held belief suffices even if unreasonable.
General defences
General defences may provide a complete answer to criminal liability, whether by negating an element or by justification/excuse. The prosecution must generally disprove a defence once it is properly raised on the evidence.
- Self-defence/prevention of crime (common law and s.3 Criminal Law Act 1967, s.76 Criminal Justice and Immigration Act 2008): force is justified if the defendant honestly believed it was necessary and the force used was reasonable in the circumstances as they believed them to be.
- The necessity of force is judged on the defendant's honest belief (even if mistaken), but the degree of force is judged objectively; householder cases allow force that is not grossly disproportionate.
- Intoxication: voluntary intoxication may negate the mens rea of specific-intent offences but is no defence to basic-intent offences (Majewski); involuntary intoxication is a defence only if it negates mens rea.
- A drunken mistake cannot be relied on to support self-defence (s.76(5) CJIA 2008; O'Grady).
- Duress by threats: threat of death or serious injury to the defendant or another, a reasonable belief in the threat, and a sober person of reasonable firmness would have acted the same (Graham; Hasan); no defence to murder or attempted murder (Howe; Gotts).
- Duress is unavailable where the defendant voluntarily associated with others foreseeing risk of compulsion (Hasan), and the threat must be effectively immediate.
- Insanity (M'Naghten Rules): a defect of reason from disease of the mind so the defendant did not know the nature/quality of the act or that it was wrong; automatism requires a total loss of voluntary control from an external factor.
Key cases & statutes
s.76 Criminal Justice and Immigration Act 2008s.3 Criminal Law Act 1967DPP v MajewskiR v HasanR v GrahamR v HoweM'Naghten's CaseR v Gotts
Where candidates lose marks
- Judging the amount of force by the defendant's belief — necessity is on honest belief, but reasonableness of the degree of force is objective.
- Allowing duress for murder — it is never a defence to murder or attempted murder.
- Confusing insanity (internal disease of the mind) with automatism (external cause and total loss of control).
Inchoate offences & parties
Inchoate offences criminalise conduct before the full crime is completed, while the rules on parties (accessorial liability) determine who besides the principal is liable. Both extend criminal responsibility beyond the direct perpetrator.
- Attempt (s.1 Criminal Attempts Act 1981): an act more than merely preparatory to the offence, with intent to commit it (Gullefer; Geddes on the more-than-merely-preparatory line).
- Attempt requires intent even where recklessness suffices for the full offence; attempting the impossible is still an attempt (s.1(2)-(3); Shivpuri).
- Conspiracy (s.1 Criminal Law Act 1977): an agreement between two or more that a course of conduct will be pursued which will necessarily amount to an offence; the agreement itself is the crime.
- Encouraging or assisting crime (ss.44-46 Serious Crime Act 2007) replaced common law incitement; the offence is complete on the act of encouragement/assistance regardless of whether the offence occurs.
- A principal offender directly commits the actus reus; an accessory aids, abets, counsels or procures the offence (s.8 Accessories and Abettors Act 1861).
- Accessorial liability requires the accessory to intend to assist/encourage and to know the essential matters of the principal's offence (Jogee restored intention as the fault element for secondary liability).
- Withdrawal from participation may negate liability, but generally requires timely and (for spontaneous violence) unequivocal communication of withdrawal.
Key cases & statutes
s.1 Criminal Attempts Act 1981s.1 Criminal Law Act 1977 (conspiracy)ss.44-46 Serious Crime Act 2007s.8 Accessories and Abettors Act 1861R v JogeeR v ShivpuriR v GeddesR v Gullefer
Where candidates lose marks
- Applying the old 'parasitic accessory liability' foresight test — R v Jogee held foresight is only evidence of intent, not a substitute for it.
- Thinking attempt can be committed recklessly — it requires intention to commit the substantive offence.
- Assuming impossibility is a defence to attempt or conspiracy — under statute it generally is not (Shivpuri).
FLK2 · Subject 13 of 13
SQE1 Criminal Litigation
Criminal Litigation follows a criminal case from the police station to sentence and appeal — advising under PACE, the first hearing and bail, plea and allocation, trial in the magistrates' and Crown Court, and sentencing. It is a procedure subject with important police-station and bail content.
How Criminal Litigation is examined
Questions place you at a stage of a criminal case and ask what advice to give, whether bail can be refused, how an either-way offence is allocated, or the route of appeal. Adverse inferences and identification evidence recur.
How to revise it
- Know the PACE detention clock and the right to legal advice.
- Learn the grounds to refuse bail and the prosecution's right of appeal.
- Understand plea before venue, allocation, and the routes of appeal from each court.
The 8 Criminal Litigation subtopics
Advising at the police station & PACE
The Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice govern the treatment of suspects in custody and the conduct of interviews. A solicitor advising at the police station must know detention time limits and the suspect's rights.
- A person arrested must be taken to a police station; the custody officer authorises detention and opens a custody record (PACE ss.36-37).
- The right to free and independent legal advice is guaranteed (PACE s.58); it may be delayed only for an indictable offence, on an officer of superintendent rank's authority, on specified grounds.
- The right to have someone informed of the arrest (PACE s.56) may similarly be delayed on the same limited grounds.
- Detention without charge is generally limited to 24 hours, extendable to 36 hours by a superintendent, and up to 96 hours by a magistrates' court warrant; review of detention is required (PACE ss.40-44).
- Interviews must be conducted and recorded under Code C and Code E; the suspect must be cautioned and vulnerable suspects require an appropriate adult.
- The solicitor's role is to protect and advance the client's legal rights, not to obstruct; they may intervene to seek clarification or advise on answering.
- Significant statements and silences may be put to the suspect at interview; unfairly or oppressively obtained confessions may be excluded (PACE ss.76 and 78).
Key cases & statutes
PACE 1984 s.58PACE 1984 s.56PACE 1984 s.37PACE 1984 ss.40-44PACE 1984 s.76PACE 1984 s.78PACE Code CPACE Code E
Where candidates lose marks
- Confusing the 24-hour clock (relevant time from arrival at the station) with the point of arrest — the detention clock generally runs from arrival at the first station.
- Assuming legal advice can never be delayed — it can, but only for indictable offences on limited statutory grounds and never denied outright.
- Overlooking that an appropriate adult is required for juveniles and vulnerable suspects, separate from the right to legal advice.
The right to silence & identification
A suspect has a right to silence, but adverse inferences may be drawn in defined circumstances under the Criminal Justice and Public Order Act 1994. Identification evidence is regulated by PACE Code D to reduce the risk of mistaken identification.
- s.34 CJPOA 1994: an inference may be drawn where the accused failed to mention, when questioned, a fact later relied on at trial which they could reasonably have been expected to mention.
- s.36 and s.37 CJPOA: inferences from failure to account for objects/marks/substances or presence at a place, following a special warning.
- No conviction may be based solely on a s.34-37 inference (s.38(3) CJPOA 1994), and no inference may be drawn from silence where the suspect had not been allowed to consult a solicitor (YJCEA 1999 s.58, which inserted CJPOA s.34(2A); Condron; Argent).
- Legal advice to remain silent does not automatically prevent an inference, but genuine reliance on it is relevant (Betts and Hall; Howell).
- Identification procedures under Code D (video identification, identification parade, group identification) must be held where identification is disputed and a suspect is known and available.
- Turnbull guidelines: where identification evidence is disputed, the judge must warn the jury of the special need for caution and direct on the quality of the identification (assessed via factors like distance, lighting, duration - ADVOKATE).
- Breaches of Code D may lead to exclusion of identification evidence under PACE s.78 or a strengthened Turnbull warning.
Key cases & statutes
s.34 CJPOA 1994s.36 CJPOA 1994s.37 CJPOA 1994YJCEA 1999 s.58 (no inference without legal advice)s.38(3) CJPOA 1994R v TurnbullR v ArgentR v CondronPACE Code D
Where candidates lose marks
- Thinking silence alone can convict — a s.34 inference cannot be the sole basis for conviction.
- Assuming reliance on legal advice always blocks an inference — the jury may still draw one if silence was not genuinely based on that advice.
- Forgetting the Turnbull warning applies to disputed identification generally, not only to formal parades.
First hearing, bail & remand
After charge a defendant appears at the magistrates' court for a first hearing, where questions of bail or remand are decided. The Bail Act 1976 creates a presumption in favour of bail subject to exceptions.
- There is a general right to bail under s.4 Bail Act 1976, subject to the exceptions in Schedule 1.
- For imprisonable offences, bail may be refused if there are substantial grounds to believe the defendant would fail to surrender, commit further offences, or interfere with witnesses/obstruct justice.
- The court considers the nature/seriousness of the offence, the defendant's character, community ties, bail record, and strength of the evidence when assessing the exceptions.
- Bail may be granted with conditions (residence, reporting, sureties, surety/security, curfew, electronic monitoring) to address the perceived risks.
- Where bail is refused, a defendant may generally appeal or make a further application; a fresh full argument may be made once as of right, then only on a change of circumstances.
- Special provisions apply to certain offences (e.g. restrictions where the defendant was on bail at the time, and heightened tests for serious offences).
- Breach of bail conditions or failure to surrender (an offence under s.6 Bail Act 1976) may lead to arrest and remand in custody.
Key cases & statutes
Bail Act 1976 s.4Bail Act 1976 Schedule 1Bail Act 1976 s.6Bail Act 1976 s.3 (conditions)s.4 Bail Act 1976 (right to bail)PACE 1984 (police bail)Criminal Procedure Rules Part 14
Where candidates lose marks
- Stating there must be certainty a defendant will abscond — the test is 'substantial grounds to believe', a lower threshold.
- Confusing conditions of bail (to manage risk) with the grounds for refusing bail altogether.
- Forgetting that after a full contested bail application is refused, further applications generally require a change in circumstances.
Plea & allocation
Offences are classified as summary-only, either-way, or indictable-only, which determines where they are tried. For either-way offences the plea before venue and allocation procedure decides the trial venue.
- Summary-only offences are tried in the magistrates' court; indictable-only offences are sent to the Crown Court under s.51 Crime and Disorder Act 1998.
- Either-way offences follow plea before venue: the defendant indicates a plea before allocation is considered.
- On a guilty plea before venue the magistrates proceed to sentence, but may commit to the Crown Court for sentence if their powers are insufficient.
- On a not-guilty indication, the court conducts allocation: it decides whether the case is suitable for summary trial, considering the Allocation Guideline and sentencing powers.
- If the magistrates accept jurisdiction, the defendant may still elect Crown Court trial by jury; if they decline jurisdiction the case is sent to the Crown Court.
- The defendant may request an indication of sentence before electing, but the court is not obliged to give one.
- Certain criminal damage offences of low value are treated as summary-only, and specified low-value shoplifting is triable summarily but the adult defendant retains the right to elect Crown Court trial.
Key cases & statutes
s.51 Crime and Disorder Act 1998Magistrates' Courts Act 1980 s.17A-20 (plea before venue/allocation)Magistrates' Courts Act 1980 s.19Sentencing Act 2020 (committal for sentence)Allocation Guideline (Sentencing Council)Criminal Procedure Rules Part 9
Where candidates lose marks
- Confusing the classification: either-way offences are not automatically Crown Court cases — venue depends on plea before venue and allocation.
- Forgetting that accepting jurisdiction does not bind the defendant, who may still elect Crown Court trial.
- Assuming a guilty plea in the magistrates' court caps the sentence — the court can still commit for sentence to the Crown Court.
Magistrates' court trial
A summary trial in the magistrates' court is conducted before a bench of magistrates or a district judge, who decide both fact and law. The Criminal Procedure Rules govern case management and the trial process.
- The prosecution opens and calls its evidence; witnesses are examined in chief, cross-examined and re-examined.
- At the close of the prosecution case the defence may submit no case to answer (applying the Galbraith test) if the evidence is insufficient.
- The defence may then give and call evidence; the defendant is competent but not compellable, and adverse inferences may follow from a failure to testify (s.35 CJPOA 1994).
- The magistrates or district judge determine guilt applying the criminal standard (sure/beyond reasonable doubt).
- Case management under the Criminal Procedure Rules requires early identification of issues and compliance with directions; the overriding objective is to deal with cases justly.
- Disclosure obligations apply: the prosecution must disclose unused material capable of undermining its case or assisting the defence (CPIA 1996), and a defence statement may be required.
- On conviction the court proceeds to sentence, with its sentencing powers capped (with power to commit either-way matters for sentence).
Key cases & statutes
R v Galbraith (no case to answer)s.35 CJPOA 1994Criminal Procedure and Investigations Act 1996Criminal Procedure Rules Part 24Magistrates' Courts Act 1980Criminal Procedure Rules (overriding objective, Part 1)
Where candidates lose marks
- Confusing the Galbraith submission (evidential insufficiency) with an argument on the ultimate merits.
- Overlooking the defendant's right not to be compelled to testify while forgetting an adverse inference may still be drawn under s.35.
- Treating disclosure as one-sided — the defence may be required to serve a defence statement in summary proceedings if it wants certain disclosure.
Crown Court trial
Trial on indictment in the Crown Court is before a judge and jury, with the judge deciding law and the jury deciding facts. Serious and elected either-way cases are tried here following sending under s.51.
- After sending, the case proceeds through the plea and trial preparation hearing (PTPH) where the defendant is arraigned and enters a plea.
- The judge rules on questions of law, admissibility of evidence and directions; the jury of twelve determines guilt on the facts.
- The prosecution opens, calls evidence, and the defence may make a submission of no case to answer to the judge (Galbraith) in the jury's absence.
- The judge sums up the law and evidence and directs the jury; the jury should first be directed to reach a unanimous verdict.
- A majority verdict (e.g. 11-1 or 10-2) may be accepted only after the jury has deliberated for a minimum period and the judge so directs (Juries Act 1974 s.17).
- Disclosure under the CPIA 1996 is central: prosecution disclosure of unused material, a defence statement, and continuing review of disclosure.
- On conviction the judge sentences within the statutory maxima, applying Sentencing Council guidelines; the greater sentencing powers of the Crown Court apply.
Key cases & statutes
s.51 Crime and Disorder Act 1998Juries Act 1974 s.17R v GalbraithCriminal Procedure and Investigations Act 1996Criminal Procedure Rules Part 25Plea and Trial Preparation Hearing (PTPH)
Where candidates lose marks
- Assuming majority verdicts are available immediately — a minimum deliberation period must pass before the judge may accept one.
- Confusing the roles: the judge decides admissibility and law, the jury decides the facts and verdict.
- Forgetting the defence statement obligation in the Crown Court, non-compliance with which can attract adverse comment.
Burden & standard of proof
The general rule is that the prosecution bears the legal burden of proving guilt to the criminal standard. Limited exceptions place a burden on the defendant, usually to the civil standard.
- The prosecution bears the legal (persuasive) burden of proving all elements of the offence (Woolmington v DPP - the 'golden thread').
- The criminal standard is proof so that the tribunal is sure (beyond reasonable doubt).
- The defendant generally bears only an evidential burden to raise a defence (e.g. self-defence), which the prosecution must then disprove.
- Certain defences impose a legal burden on the defendant, discharged on the balance of probabilities (e.g. insanity, and diminished responsibility under s.2 Homicide Act 1957).
- Statutory reverse burdens exist but must be compatible with the presumption of innocence in Article 6 ECHR; courts may read an apparent legal burden down to an evidential one (Lambert; Sheldrake).
- Where the defendant bears a legal burden the standard is the balance of probabilities, never the criminal standard.
- The tribunal must be directed clearly on who bears the burden and to what standard for each issue.
Key cases & statutes
Woolmington v DPPs.2 Homicide Act 1957Article 6 ECHRR v LambertSheldrake v DPPM'Naghten's Case (insanity burden)
Where candidates lose marks
- Applying the criminal standard to a defence burden — where the defendant bears a legal burden it is discharged on the balance of probabilities.
- Confusing the evidential burden (raising an issue) with the legal burden (proving it).
- Assuming every statutory reverse burden is a full legal burden — courts may read it down to an evidential burden under Article 6.
Sentencing & appeals
Sentencing follows conviction and is governed by the Sentencing Act 2020 and Sentencing Council guidelines, aimed at statutory purposes of sentencing. Appeals lie by different routes from the magistrates' court and the Crown Court.
- The purposes of sentencing (s.57 Sentencing Act 2020) are punishment, reduction of crime (including deterrence), reform and rehabilitation, protection of the public, and reparation.
- The court determines seriousness by reference to culpability and harm, applies the relevant offence-specific guideline, and identifies aggravating and mitigating factors.
- A reduction in sentence is available for a guilty plea, on a sliding scale (up to one-third for a plea at the first stage), per the Sentencing Council guideline.
- Types of sentence include custody (immediate or suspended), community orders, fines, and ancillary orders (e.g. compensation, disqualification); custody is a last resort with a custody threshold.
- From the magistrates' court, a defendant may appeal to the Crown Court against conviction and/or sentence (rehearing), or by way of case stated / judicial review to the High Court on a point of law.
- From the Crown Court, appeal against conviction or sentence lies to the Court of Appeal (Criminal Division) with leave; conviction appeals turn on whether the conviction is 'unsafe' (Criminal Appeal Act 1968).
- The Attorney General may refer unduly lenient sentences for specified offences to the Court of Appeal, and points of law to the Court of Appeal/Supreme Court.
Key cases & statutes
Sentencing Act 2020 s.57Sentencing Act 2020 (Sentencing Code)Criminal Appeal Act 1968 s.2 (unsafe conviction)Sentencing Council Reduction in Sentence for a Guilty Plea guidelineMagistrates' Courts Act 1980 s.108 (appeal to Crown Court)s.111 Magistrates' Courts Act 1980 (case stated)
Where candidates lose marks
- Confusing the appeal routes: from the magistrates' court a factual appeal goes to the Crown Court (rehearing), while a point of law goes to the High Court by case stated.
- Overstating the guilty-plea reduction — the maximum one-third applies only to a plea at the first stage and reduces on a sliding scale thereafter.
- Forgetting the custody threshold — immediate custody must be justified as the only appropriate sentence.
SQE1 frequently asked questions
What is SQE1?
SQE1 is the first stage of the Solicitors Qualifying Examination, the single route to qualifying as a solicitor in England and Wales. It assesses Functioning Legal Knowledge (FLK) across two papers — FLK1 and FLK2 — entirely through single best answer multiple choice questions. You must pass SQE1 before attempting SQE2.
What subjects are on SQE1?
SQE1 covers the same body of Functioning Legal Knowledge split across two papers. FLK1 covers Business Law and Practice, Dispute Resolution, Contract, Tort, the Legal System of England and Wales (including Constitutional and Administrative Law and EU law), and Legal Services. FLK2 covers Property Practice, Wills and the Administration of Estates, Solicitors Accounts, Land Law, Trusts, Criminal Liability and Criminal Practice. Professional conduct and ethics are tested pervasively across every subject. (We teach this as 13 modules for clarity.)
How is SQE1 examined?
Both FLK1 and FLK2 are sat as single best answer (SBA) multiple choice papers — 180 questions in each, 360 in total. Each question gives a short factual scenario, one precise question, and five options, of which only one is the single best answer on the law applied to the facts. There is no essay or written element in SQE1; the skill is applying the law accurately and eliminating the near-miss options.
How many questions are on SQE1 and what is the pass mark?
SQE1 is made up of two papers — FLK1 and FLK2 — of 180 single best answer questions each (360 in total), sat on separate days. The time allowed and the pass mark are set by the SRA and Kaplan and are reviewed each sitting, so always confirm the current figures on the official SRA SQE website before you book.
How long does it take to revise for SQE1?
Most candidates give themselves several months of structured study, revising each subject in turn and then consolidating with full mock papers under timed conditions. A guided course with video lessons, notes and question practice keeps that on track — see the LearnSQE course for a phased plan.
Can you self-study for SQE1?
Yes. SQE1 does not require a specific preparation course — the SRA only requires you to pass the assessments and meet the qualifying work experience and character requirements. Many candidates self-study using a structured guide, question banks and timed mocks, which is exactly what this guide and the LearnSQE course are built around.
Is this guide affiliated with the SRA or Kaplan?
No. LearnSQE is independent study material and is not affiliated with, authorised or endorsed by the SRA, Kaplan or any other body. SQE assessments are set and marked by the SRA and Kaplan. Always confirm the current syllabus, rules, dates and fees on the official SRA SQE website.
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