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    (Original post by zaliack)
    Having a little difficulty with duty of care. Street on Torts seems adamant that the caparo test should always be used when establishing a duty of care, and that previous case law would support the third limb of the test.
    I don't think that those statements are contradictory. The Caparo test should be used when establishing a duty of care, but if the duty of care is already established then there is no reason to refer to it. In practice it would be absurd if every time a road accident case came to court the claimant had to show that the defendant driver owed other road users a duty of care

    My only problem with accepting that is, for example in the case of a doctor patient relationship, by saying that the doctor owes a duty of care to the patient, that says nothing about the extent of the duty of care.
    Sure, and it's not even strictly correct to say merely 'a doctor owes a duty of care to his patient', because that doesn't specify what the duty is. Otherwise we could say that every person owes every other person a duty, because, for example, they have a duty not to negligently inflict injury on them by flailing around with their fists. And a doctor probably doesn't owe a patient a duty to, for example, not give them terrible horse-racing tips. A duty can only meaningfully cover a specific situation. So a doctor has a duty to inform a patient of the risks associated with a course of treatment the doctor is recommending (Chester v Afshar). A doctor has a duty to treat the patient (Barnett v Kensington & Chelsea), etc.
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    (Original post by Forum User)
    I don't think that those statements are contradictory. The Caparo test should be used when establishing a duty of care, but if the duty of care is already established then there is no reason to refer to it. In practice it would be absurd if every time a road accident case came to court the claimant had to show that the defendant driver owed other road users a duty of care



    Sure, and it's not even strictly correct to say merely 'a doctor owes a duty of care to his patient', because that doesn't specify what the duty is. Otherwise we could say that every person owes every other person a duty, because, for example, they have a duty not to negligently inflict injury on them by flailing around with their fists. And a doctor probably doesn't owe a patient a duty to, for example, not give them terrible horse-racing tips. A duty can only meaningfully cover a specific situation. So a doctor has a duty to inform a patient of the risks associated with a course of treatment the doctor is recommending (Chester v Afshar). A doctor has a duty to treat the patient (Barnett v Kensington & Chelsea), etc.
    Ah I suppose. Guess I'm just going to use the simple 'doctor-patient' special relationship, instead of Caparo next time. I'm really starting to think Street on Torts isn't actually a good book. They've only talked abstractly about these things; not once have they mentioned common duties, only the rarer ones.
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    (Original post by nulli tertius)
    ...
    If you're free, could you answer a quick question for me? You're one of only two people on this site who I think can answer this (because it's an LPC question relating to solicitor conduct). That being said, if any law student here knows the answer, would greatly appreciate it: exam's on Monday!

    So in the FSMA Regulated Activities Order, Art 4(4) only applies to credit institutions and A4(4A) applies to other individuals. Does Art 4(4A) affect more exclusions than Art 30, 66 and 67? We've been told there's a huge list of other exclusions it affects but I can't find any evidence of this whatsoever and when we asked our PCR guy, he told us that some exclusions won't refer to it explicitly but will be affected - which seems counter-intuitive to me and I'm wondering if they've mixed people up with credit institutions :\
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    (Original post by gethsemane342)
    If you're free, could you answer a quick question for me? You're one of only two people on this site who I think can answer this (because it's an LPC question relating to solicitor conduct). That being said, if any law student here knows the answer, would greatly appreciate it: exam's on Monday!

    So in the FSMA Regulated Activities Order, Art 4(4) only applies to credit institutions and A4(4A) applies to other individuals. Does Art 4(4A) affect more exclusions than Art 30, 66 and 67? We've been told there's a huge list of other exclusions it affects but I can't find any evidence of this whatsoever and when we asked our PCR guy, he told us that some exclusions won't refer to it explicitly but will be affected - which seems counter-intuitive to me and I'm wondering if they've mixed people up with credit institutions :\
    This doesn't seem to make a lot of sense.

    Article 4 (4) basically says that people/companies who are broking, jobbing or dealing in City type investments for a living cannot claim exclusion under those four sections. It has nothing to do with credit institutions. Most of the people caught by this will be middle-men of one sort or another.

    Article 4A says that folk who are broking insurance policies are not excluded under Articles 30, 66 and 67. Rather they have to satisfy the much narrower test in Sch 4 to not be subject to the Regulations.

    If you look at the other exclusions how many of these could apply to the activity of insurance mediation ie broking insurance policies?

    Law firms don't use these exclusions. Instead they rely on section 327 and the SRA Financial Services (Scope) Rules 2001
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    (Original post by nulli tertius)
    This doesn't seem to make a lot of sense.

    Article 4 (4) basically says that people/companies who are broking, jobbing or dealing in City type investments for a living cannot claim exclusion under those four sections. It has nothing to do with credit institutions. Most of the people caught by this will be middle-men of one sort or another.

    Article 4A says that folk who are broking insurance policies are not excluded under Articles 30, 66 and 67. Rather they have to satisfy the much narrower test in Sch 4 to not be subject to the Regulations.

    If you look at the other exclusions how many of these could apply to the activity of insurance mediation ie broking insurance policies?

    Law firms don't use these exclusions. Instead they rely on section 327 and the SRA Financial Services (Scope) Rules 2001
    Thanks. I thought it was odd that we had to read around the wording. The extract we got talks about credit institutions. But it sounds like they've mixed up the two articles which i thought might be the case.

    Yeah, I didn't think the exclusions had much merit but we have to go through a "fascinating" process called the FSMA decision tree every time we answer a question and exclusions are one of the parts of it...
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    I've spent the entire weekend procrastinating . Going to work my butt off tonight to get Trusts & Tort done.
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    (Original post by zaliack)
    I've spent the entire weekend procrastinating . Going to work my butt off tonight to get Trusts & Tort done.
    More fun than me - I've spent the entire week learning PCR and Solicitor's Accounts.

    Exams tomorrow: you are going DOWN!

    Hopefully.
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    So annoying. Virgo is saying that, in an authorised sale of trust property, overreaching will occur but doesn't mention anything about the requirement of two trustees. So, does there have to be two trustees for overreaching to occur?

    (Original post by gethsemane342)
    More fun than me - I've spent the entire week learning PCR and Solicitor's Accounts.

    Exams tomorrow: you are going DOWN!

    Hopefully.
    Sounds like your having a blast

    Good luck with your exam!
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    (Original post by zaliack)
    So annoying. Virgo is saying that, in an authorised sale of trust property, overreaching will occur but doesn't mention anything about the requirement of two trustees. So, does there have to be two trustees for overreaching to occur?



    Sounds like your having a blast

    Good luck with your exam!
    I'm 99% sure that you need two or more trustees - Dixon certainly seemed to think so. I can't remember whether it had a statutory basis (try checking the footnotes of his book!).

    Sorry I can't be of more help with regard to providing a credible source. :p:

    EDIT: Yep, just found it. Confirmed in City of London BS v Flegg [1987] that under s.2(ii) LPA 1925 you need two or more trustees. Here. :yy:
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    Opinions on

    Land Law text Cases and materials - McFarlane, Hopkins, and Nield
    Tort law 4th ed - Mcbridge and Bagshaw
    Criminal law text, cases, and materials - Herring 5th ed
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    (Original post by tehforum)
    Opinions on

    Land Law text Cases and materials - McFarlane, Hopkins, and Nield
    Tort law 4th ed - Mcbridge and Bagshaw
    Criminal law text, cases, and materials - Herring 5th ed
    1) Never used it, so I'm not sure. I went with Dixon (he was my supervisor!), although some of my peers used Megarry & Wade (which, incidentally, Dixon edits)

    2) I liked it - nice and clear and can be supplemented with Winfield & Jolowicz if you want something a bit meatier. The only thing I would say is that there are some issues (vicarious liability being one, off the top of my head) where McBride and Bagshaw seem to be in the minority in their interpretation, and I'm not sure whether they're always clearly flagged up

    3) Good book - wish I'd discovered it sooner! It's pretty comprehensive and has some good journal article excerpts in it; if I had my time over again, I'd definitely buy it
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    (Original post by zaliack)
    So annoying. Virgo is saying that, in an authorised sale of trust property, overreaching will occur but doesn't mention anything about the requirement of two trustees. So, does there have to be two trustees for overreaching to occur?



    Sounds like your having a blast

    Good luck with your exam!
    Only in a sale of land. A single authorised trustee can dispose of other assets.

    It's early, and I don't have my statutes in front of me, but that provision to my recollection only applies to dispositions of legal estates in land. Only two trustees or a trustee corporation can give the buyer a valid receipt for capital in that case. Flegg is right (contrast state bank of India v sood), but only for sales of land subject to a trust.

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    Hi everyone, I'm in my first year and I'm pretty overwhelmed already!

    Any advice on what I should be doing? (I know that's a pretty ambiguous question but concerning notes and reading) any tips? Thanks.




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    (Original post by Jellybeany)
    Hi everyone, I'm in my first year and I'm pretty overwhelmed already!

    Any advice on what I should be doing? (I know that's a pretty ambiguous question but concerning notes and reading) any tips? Thanks.




    Get your notes done NOW as you progress through your course. Do not leave it till the end of the year towards exam time. You will not regret it and it will ease the workload and stress significantly when it comes to exam time. It may sound like common sense, but I think this is one of the best advice for law students.
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    Guys.

    need some help

    re: public policy and limiting duty on tort

    Need one or two cases were the line of duty was in favour of helping the claimant!

    cheers
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    (Original post by tehforum)
    Guys.

    need some help

    re: public policy and limiting duty on tort

    Need one or two cases were the line of duty was in favour of helping the claimant!

    cheers
    Are you talking about cases where a public body was the defendant? How about Kent v Griffiths, Swinney v Chief Constable of Northumbria (there was a duty but claimant lost on breach), Rigby v Chief Constable of Northamptonshire Police.
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    (Original post by Forum User)
    Are you talking about cases where a public body was the defendant? How about Kent v Griffiths, Swinney v Chief Constable of Northumbria (there was a duty but claimant lost on breach), Rigby v Chief Constable of Northamptonshire Police.
    Yes!

    thank you
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    Anyone know a good book to explain the principles of 'autrefois convict'? Specifically whether someone who has been cautioned for an offence can be charged with the exact same offence? Blackstone's Criminal Practice perhaps?
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    (Original post by Forum User)
    Anyone know a good book to explain the principles of 'autrefois convict'? Specifically whether someone who has been cautioned for an offence can be charged with the exact same offence? Blackstone's Criminal Practice perhaps?
    If it's anything like Renton and Brown in Scotland Blackstone's would work well.

    I realise this may be one of the least helpful posts ever made on this thread.
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    (Original post by Norton1)
    If it's anything like Renton and Brown in Scotland Blackstone's would work well.

    I realise this may be one of the least helpful posts ever made on this thread.
    I found some stuff in Archbold that looks relevant. Bizarrely I have a moot on something which is not 'substantive law' at all - the question is basically whether if the police issue a conditional caution they can subsequently change their mind and prosecute, or if that will fall foul of the rule that you can't be convicted for the same offence twice and be an abuse of process.

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