## Business Structures

Businesses can operate as sole traders, partnerships, Limited Liability Partnerships (LLPs), or companies. A private company limited by shares is a distinct legal entity (separate legal personality) from its owners (shareholders) and managers (directors). This provides limited liability for shareholders, meaning their personal assets are generally protected from company debts beyond their investment.

## Company Formation and Constitution

To form a company, an application is made to Companies House, including the proposed company name, registered office address, details of directors and secretary (if any), statement of capital and initial shareholdings, and a statement of compliance. The company's constitution primarily consists of its Articles of Association, which govern the internal management of the company. The Model Articles are the default for private companies unless amended or replaced.

## Directors

Directors are responsible for the day-to-day management of the company. They are appointed by shareholders and owe statutory duties under the Companies Act 2006 (CA 2006). Key duties include:

• To act within powers (s.171 CA 2006).
• To promote the success of the company (s.172 CA 2006), considering stakeholders.
• To exercise independent judgment (s.173 CA 2006).
• To exercise reasonable care, skill and diligence (s.174 CA 2006).
• To avoid conflicts of interest (s.175 CA 2006).
• Not to accept benefits from third parties (s.176 CA 2006).
• To declare interests in proposed transactions or arrangements (s.177 CA 2006).

A private company must have at least one director.

## Shareholders

Shareholders are the owners of the company. They typically exercise control through voting at general meetings on significant matters, such as appointing and removing directors, approving changes to the Articles, and authorising certain transactions. Decisions are made through ordinary resolutions (simple majority, >50%) or special resolutions (75% majority), depending on the matter.

## Dispute Resolution: An Overview

Dispute Resolution in England and Wales is primarily governed by the Civil Procedure Rules (CPR), which aim to enable the court to deal with cases justly and at proportionate cost – known as the Overriding Objective (CPR Part 1). This objective underpins all court procedures and requires parties to assist the court in achieving it.

## Pre-Action Conduct

Before issuing proceedings, parties are generally expected to comply with Pre-Action Protocols (PAPs) or the Practice Direction on Pre-Action Conduct. These encourage early exchange of information, negotiation, and consideration of Alternative Dispute Resolution (ADR). Failure to comply can lead to cost sanctions.

## Starting and Responding to Claims

A claim is typically started by issuing a Claim Form (CPR Part 7), followed by Particulars of Claim detailing the case. These documents must be properly served on the defendant. The defendant then has options: acknowledge service, file a defence, admit the claim, or make a counterclaim.

## Case Management and Disclosure

Once a defence is filed, the court will allocate the case to a track: Small Claims Track (up to £10,000, simplified procedure), Fast Track (£10,000-£25,000, strict timetable, one expert per field), or Multi-Track (over £25,000 or complex cases, flexible management). Parties complete a Directions Questionnaire to assist this process.

Disclosure is the process where parties reveal documents relevant to the case. The default is Standard Disclosure, requiring parties to disclose documents on which they rely, which adversely affect their own case, adversely affect another party's case, or support another party's case. After disclosure, documents are usually made available for inspection.

## Evidence and Settlement

Evidence is typically presented through witness statements for facts and expert reports for opinions on technical matters. Experts owe a primary duty to the court.

Part 36 offers are a crucial settlement mechanism. A Part 36 offer is a formal offer to settle that carries specific cost consequences if not accepted, designed to encourage reasonable settlement. The party making a Part 36 offer can gain significant cost advantages if the other party fails to achieve a better result at trial.

## Alternative Dispute Resolution (ADR)

ADR methods are encouraged throughout the litigation process. Common forms include mediation (facilitated negotiation with a neutral third party), negotiation (direct discussion between parties or their lawyers), and arbitration (a private, binding decision by an arbitrator). ADR can be quicker, cheaper, and more flexible than litigation.

## Contract Formation

A valid contract requires four key elements: offer, acceptance, consideration, and intention to create legal relations. An offer must be a clear, unambiguous proposal to enter into a contract on specific terms, showing an intention to be bound upon acceptance (*Storer v Manchester City Council*). It must be distinguished from an invitation to treat (e.g., goods on display, advertisements – *Pharmaceutical Society v Boots*, *Partridge v Crittenden*). An offer can be revoked before acceptance, but revocation must be communicated (*Byrne v Van Tienhoven*).

Acceptance must be unqualified assent to all terms of the offer (*Hyde v Wrench*). It must be communicated to the offeror (*Entores v Miles Far East Corp*), though the postal rule is an exception for non-instantaneous communication (*Adams v Lindsell*).

Consideration is the 'price' for which the promise of the other is bought (*Dunlop v Selfridge*). It must be sufficient but need not be adequate. Past consideration is generally not good consideration. Performance of an existing contractual duty is generally not good consideration for a new promise unless it confers a practical benefit (*Williams v Roffey Bros*).

Intention to create legal relations is presumed in commercial agreements but rebutted in social/domestic ones (*Balfour v Balfour*).

## Contract Terms

Terms can be express (stated) or implied (by statute, custom, or fact). Terms are classified as conditions (goes to the root of the contract, breach allows termination and damages), warranties (minor term, breach allows damages only), or innominate terms (effect of breach determines remedy – *Hongkong Fir Shipping*). Exclusion clauses limit or exclude liability and are subject to common law rules of incorporation and interpretation, and statutory controls like the Unfair Contract Terms Act 1977 (UCTA) for business-to-business contracts, and the Consumer Rights Act 2015 (CRA) for business-to-consumer contracts.

## Vitiating Factors & Remedies

Misrepresentation is a false statement of fact by one party to another, inducing them to enter the contract. Types include fraudulent, negligent (common law or s.2(1) Misrepresentation Act 1967), and innocent. Remedies include rescission and/or damages.

A breach of contract occurs when a party fails to perform their obligations. The primary remedy is damages, aiming to put the innocent party in the position they would have been in had the contract been performed (*Robinson v Harman*). Damages must not be too remote (*Hadley v Baxendale*) and the claimant must mitigate their loss.

## Introduction to Tort Law

Tort law deals with civil wrongs that cause someone to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. The primary aim is to compensate the victim, not to punish the wrongdoer.

## Negligence

This is the most common tort. To prove negligence, a claimant must establish four elements:

1. Duty of Care: The defendant owed the claimant a duty of care. The neighbour principle from *Donoghue v Stevenson* established that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. For novel situations, the Caparo test requires foreseeability of harm, proximity of relationship, and that it is fair, just, and reasonable to impose a duty.

2. Breach of Duty: The defendant breached that duty. This is judged by an objective standard: what would a reasonable person in the defendant's position have done? Factors include the likelihood of harm, severity of harm, cost of precautions, and social utility of the defendant's activity (*Bolton v Stone*, *Paris v Stepney Borough Council*). Professionals are judged by the standard of a reasonably competent professional in that field (Bolam test). The maxim res ipsa loquitur ("the thing speaks for itself") can sometimes shift the burden of proof.

3. Causation: The breach caused the claimant's damage.

• Factual Causation: The 'but for' test – *but for* the defendant's breach, would the claimant have suffered the damage? (*Barnett v Chelsea and Kensington Hospital*).
• Legal Causation (Remoteness): The damage must not be too remote. It must be a reasonably foreseeable consequence of the breach (*The Wagon Mound (No 1)*). The *type* of harm must be foreseeable, not necessarily the exact mechanism.

4. Damage: The claimant suffered actual damage (e.g., personal injury, property damage, pure economic loss, psychiatric harm).

## Occupiers' Liability

Governed by two statutes:

• Occupiers' Liability Act 1957: Deals with lawful visitors. An occupier owes a "common duty of care" to ensure visitors are reasonably safe in using the premises for the purposes for which they are invited or permitted to be there.
• Occupiers' Liability Act 1984: Deals with trespassers and other non-visitors. A duty is owed if the occupier is aware of the danger, knows or has reasonable grounds to believe the other person is in the vicinity of the danger, and the risk is one against which they may reasonably be expected to offer some protection.

## Nuisance

• Private Nuisance: Unlawful interference with a person's use or enjoyment of land, or some right over or in connection with it. Requires proof of damage (property damage or amenity loss). Factors include duration, intensity, character of the neighbourhood, and sensitivity of the claimant.

## Trespass to the Person

Direct and intentional interference with a person's body or liberty.

• Battery: Intentional direct application of unlawful force to another person.
• Assault: Act which causes the claimant reasonably to apprehend the infliction of immediate, unlawful force.
• False Imprisonment: Unlawful imposition of constraint on another's freedom of movement from a particular place.

## Defences & Vicarious Liability

Common defences include contributory negligence (reduces damages if claimant partly at fault), volenti non fit injuria (voluntary assumption of risk), and illegality (ex turpi causa). Vicarious liability holds an employer liable for torts committed by their employees in the course of employment.

## Estates and Interests in Land

In English land law, the primary legal estates are freehold (fee simple absolute in possession) and leasehold (term of years absolute). All other interests are equitable interests unless they meet specific statutory criteria (e.g., legal easements, legal mortgages). Legal interests generally bind the world; equitable interests are more vulnerable and often require protection, especially in registered land. The Law of Property Act 1925 (LPA 1925) is a foundational statute.

## Land Registration

The Land Registration Act 2002 (LRA 2002) governs registered land, aiming for a comprehensive and accurate record of title. The system operates on three principles:

• Mirror Principle: The register should reflect all interests affecting the land.
• Curtain Principle: Purchasers are not concerned with beneficial interests behind a trust, provided overreaching occurs.
• Crack Principle: The register is conclusive, even if incorrect, subject to rectification.

The register is divided into three parts: Property Register (describes the land), Proprietorship Register (identifies the owner and any restrictions), and Charges Register (lists burdens like mortgages, easements, and covenants). Overriding interests are an exception to the mirror principle, binding a purchaser even if not on the register (e.g., actual occupation).

## Co-ownership

Where land is owned by more than one person, it can be held as a joint tenancy (JT) or a tenancy in common (TIC).

• Joint Tenancy: Owners hold the whole property together; there are no distinct shares. The four unities (possession, interest, title, time) must be present. The key feature is the right of survivorship – on death, the deceased's interest automatically passes to the surviving joint tenants.
• Tenancy in Common: Owners hold distinct, undivided shares in the property. There is no right of survivorship. Only the unity of possession is required.

A joint tenancy can be severed to become a tenancy in common, typically by notice in writing (s.36(2) LPA 1925), mutual agreement, or a course of dealing. Severance only affects the beneficial interest.

## The Conveyancing Process

The transfer of property typically involves three main stages:

1. Pre-Contract: Due diligence, searches (e.g., local authority, environmental), enquiries, and drafting of the contract.

2. Exchange of Contracts: A legally binding agreement is formed. A deposit (usually 10%) is paid. Risk passes to the buyer.

3. Completion: The balance of the purchase price is paid, and the transfer deed (TR1) is executed. Legal title passes.

4. Post-Completion: Registration of the transfer at the Land Registry, payment of Stamp Duty Land Tax (SDLT).

## Wills and the Administration of Estates

This topic covers the creation, validity, and revocation of wills, as well as the rules governing the distribution of an estate where there is no valid will (intestacy) and the process of estate administration.

## Validity of a Will

For a will to be valid, three core requirements must be met:

• Testamentary Capacity: The testator must be over 18 and have the mental capacity to make a will. The Banks v Goodfellow test requires the testator to understand the nature of the act, the extent of their property, the claims of potential beneficiaries, and not be suffering from any mental disorder that influences the will.
• Testamentary Intention: The testator must intend for the document to be their will, disposing of their property upon death.
• Formalities (S.9 Wills Act 1837): The will must be in writing, signed by the testator (or someone on their behalf in their presence and by their direction), and the signature must be made or acknowledged in the presence of two witnesses, who then attest and sign the will in the testator's presence.

## Revocation and Alterations

A will can be revoked by a later valid will or codicil, by marriage or civil partnership (unless made in contemplation of it), or by destruction with the intention to revoke. Alterations to a will must generally be executed with the same formalities as a will (S.21 Wills Act 1837) unless the original words are no longer apparent after obliteration.

## Failure of Gifts

• Lapse: A gift fails if the beneficiary dies before the testator, unless S.33 Wills Act 1837 (gifts to issue) applies.
• Ademption: A specific gift fails if the property no longer forms part of the testator's estate at their death.
• Forfeiture: A beneficiary cannot inherit if they unlawfully killed the testator.

## Intestacy Rules

Where there is no valid will, or it doesn't dispose of all property, the Administration of Estates Act 1925 dictates the order of distribution. The surviving spouse/civil partner has priority, receiving personal chattels, a statutory legacy (currently £270,000 plus interest), and half of the remaining residue absolutely. The other half of the residue (or the whole if no spouse/CP) passes to issue, then parents, siblings, grandparents, uncles/aunts, and finally the Crown.

## Administration of Estates

Personal Representatives (PRs) are responsible for administering the estate. If appointed by will, they are executors; if appointed by the court (e.g., under intestacy), they are administrators. PRs must ascertain assets and liabilities, pay debts and taxes (including Inheritance Tax), and distribute the estate according to the will or intestacy rules. A Grant of Probate (for executors) or Letters of Administration (for administrators) is usually required to deal with estate assets like land or significant bank accounts.

## Estates and Interests in Land

Land Law primarily concerns estates and interests in land. An estate grants a period of ownership, while an interest grants a right over someone else's land. The two legal estates capable of existing are Freehold (Fee Simple Absolute in Possession) and Leasehold (Term of Years Absolute) (s.1(1) Law of Property Act 1925 - LPA 1925). All other rights are equitable or lesser legal interests.

## Legal vs. Equitable Interests

For an interest to be legal, it must be listed in s.1(2) LPA 1925 (e.g., easements, mortgages), created by deed (s.52 LPA 1925), and, if registrable, registered (Land Registration Act 2002 - LRA 2002). If these conditions are not met, the interest may exist in equity, provided it satisfies the requirements for an equitable interest (e.g., a written contract under s.2 Law of Property (Miscellaneous Provisions) Act 1989 - LP(MP)A 1989).

## Co-ownership: Joint Tenancy vs. Tenancy in Common

When land is owned by two or more people, it's either a Joint Tenancy (JT) or a Tenancy in Common (TIC).

• Joint Tenancy: Owners hold the land as a single entity. The four unities must be present: Possession, Interest, Title, and Time. Key feature is right of survivorship – on death, the deceased's interest automatically passes to the surviving joint tenants.
• Tenancy in Common: Owners hold distinct, undivided shares. Only the unity of possession is required. There is no right of survivorship; shares can be left by will or pass under intestacy rules.

## Severance of a Joint Tenancy

A joint tenancy can be severed during the lifetime of the joint tenants, converting it into a tenancy in common. This destroys the right of survivorship. Methods of severance include:

• Notice in writing: s.36(2) LPA 1925. Must be served on all other joint tenants. Does not require agreement or signature from recipients. Effective when delivered to the last known address (s.196 LPA 1925, *Kinch v Bullard*).
• Act operating on one's own share: E.g., selling or mortgaging one's equitable share.
• Mutual agreement or course of dealing: Requires common intention of all joint tenants to sever.

## Registered Land

The Land Registration Act 2002 (LRA 2002) governs registered land. The register provides a comprehensive record of ownership and interests. The aim is to make conveyancing simpler and more secure. Key principles include:

• Mirror principle: The register should reflect all interests affecting the land.
• Curtain principle: Purchasers do not need to look behind the register regarding beneficial interests under a trust.
• Insurance principle: The state guarantees the accuracy of the register.

Certain interests, known as overriding interests (Schedule 3 LRA 2002), bind a purchaser even if not registered, e.g., leases under 7 years, interests of persons in actual occupation.

## General Principles of Criminal Liability

For a person to be criminally liable, the prosecution must generally prove two elements beyond reasonable doubt: the Actus Reus and the Mens Rea. These must coincide in time.

Actus Reus (The Guilty Act)

This refers to the physical element of a crime. It can be:

• A positive act: e.g., hitting someone.
• An omission: failure to act where there is a legal duty to do so (e.g., parental duty, contractual duty, duty arising from a dangerous situation created by the defendant). No general duty to act to prevent harm.
• A state of affairs: e.g., being found drunk in a public place. (These are rare).

The Actus Reus must be voluntary. If the Actus Reus involves a consequence (e.g., death in murder), the defendant's act must be the factual and legal cause of that consequence (Causation). Factual causation uses the "but for" test. Legal causation requires the act to be an operating and substantial cause, with no *novus actus interveniens* (new intervening act) breaking the chain of causation.

Mens Rea (The Guilty Mind)

This is the mental element of a crime. Common forms include:

• Intention: Direct (aiming to achieve the result) or Oblique (foreseeing the result as virtually certain, *Woollin* test).
• Recklessness: Foreseeing a risk and unreasonably taking it (*Cunningham* recklessness – subjective test).
• Knowledge or Belief: Required for certain offences (e.g., handling stolen goods).

Some offences are strict liability, requiring no Mens Rea for at least one element of the Actus Reus.

## Key Offences

Murder

The unlawful killing of a human being under the Queen's Peace with malice aforethought. Malice aforethought is the Mens Rea, meaning an intention to kill or cause grievous bodily harm (GBH).

Theft (Theft Act 1968, s.1)

A person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. Each element must be proven.

## Defences

Self-Defence/Defence of Another

A person may use reasonable force to defend themselves, another, or property, or to prevent crime (Criminal Justice and Immigration Act 2008, s.76). The force used must be reasonable in the circumstances as the defendant honestly believed them to be.

Duress

A defence where the defendant was forced to commit a crime due to threats of death or serious injury to themselves or another. It is not available for murder or attempted murder. The test involves two stages (*Graham* test, affirmed in *Hasan*):

1. Was the defendant compelled to act as they did because they reasonably believed they would suffer death or serious injury if they did not?

2. Would a sober person of reasonable firmness, sharing the defendant's characteristics, have responded in the same way?