by David Kelly
17 Aug 2010
Candidates continue to insist on repeating prepared answers and wasting time covering totally unnecessary or irrelevant material in search of unavailable marks. Had they focused on the questions asked, and the time allocated to those answers in relation to the marks available, they would have had more time to deal with other, more appropriate aspects of the paper. It must be emphasised to candidates that spending 60 minutes on a question that is worth a total of 10 marks can never achieve more than 10 marks, no matter how many times candidates repeat the same information.
Also, there has to be recognition of overload in relation to available marks. For example, the fact that the question relating to debentures only carried three marks did not justify a three-page answer, especially as most of the points made tended to be repeated in the two later parts of the question.
More importantly was the dislocation, apparent in the final three analysis/application questions, between general knowledge of the law and the specific application of that law.
Question 1
This question required candidates to describe the structure and functions of the main civil courts in the English legal system. The question did not ask for an essay on precedent, although all too frequently that was what was provided. Fortunately, marks could be awarded for the court structure. The number of candidates who had no idea of the new Supreme Court was surprising, as was the number of candidates who thought it was additional to the House of Lords. Candidates should be made aware that the Queen actually does not sit on the Queen's Bench of the High Court.
Question 2
This question was divided into three parts and required candidates to explain the meaning of three elements in contract law: offer; counter-offer and unilateral offer.
While most candidates did well on the first two parts, very few were able to deal adequately with the third element. However, many candidates produced essays on all aspects in relation to the formation of contracts, which obviously was not necessary. Candidates should be made aware that a counter-offer does not actually relate to an offer made at a counter.
Question 3
This question required candidates to explain the meaning of the concept duty of care in the tort of negligence. All too often, candidates showed their lack of confidence in this area by producing general answers about all aspects of the tort of negligence, rather than focusing on the narrower and shorter issue of 'duty of care'. Candidates should be made aware that the Queen did not actually decide that being 'neighbourly' was a good thing, at least not in terms of the law of tort.
Question 4
This question required candidates to list and explain the documents required to be submitted to the companies' registry in order to register a company.
It was done fairly well as there were lots of marks available but there was a general lack of focus in the application. There was also confusion about the certificate of trading, some candidates laiming that the company had to register such a document.
Candidates should be made aware that the company 'seal' does not have to signify/applaud the application.
Question 5
This question, split into three separate parts, required candidates to consider how companies might raise loan capital and how they secure such loans against their assets.
It was, on the whole, well done, although a number of candidates tended to focus on the commercial/accountancy aspects of ebentures rather than the legal aspects. Candidates should be made aware that the terms 'floating' and 'fixed' charges do not refer to rates of interest paid on loans.
Question 6
This question required candidates to consider the company secretary in the context of the idea of corporate governance. The corporate governance aspect was not dealt with at all well and should be emphasised in future.
Although the company secretary part was generally well done, this was marred by the number of candidates who thought that the company secretary was the chief executive office/managing director's personal assistant. Also, while candidates were happy to emphasise the high level of qualifications required to be a company secretary, they nonetheless tended to reduce the role of the secretary to a very mundane level.
Question 7
This question required candidates to explain the common law rules used to distinguish contracts of service from contracts for services. Although well done on the whole, candidates should know the three tests and not run them together. Also, more attention and clarity is required in relation to the various test, specially ntegration test. Candidates should be made aware that simply repeating the title of the test is not sufficient to explain it.
Question 8
This was the first of the three analysis/application questions and it has to be said that it was not done as well as the previous knowledge questions. It required an understanding of, and an ability to apply, the rules relating to consideration and it prompted a variety of answers, which varied greatly in standard.
As with the other scenario-based questions, the application of the law was sorely remiss. A number of candidates set out the legal principles correctly, including supporting case authority; but then simply applied it in a contradictory manner.
This is clearly a matter of major importance and it is one that can only be overcome by students practising scenario questions to bolster their abilities and skills in analysing scenarios and applying the appropriate law to those situations.
Question 9
This question required candidates to analyse a given scenario and accurately apply the law of partnership to it. There was a lot of repetition of the facts from the scenario. Whilst this is sometimes relevant to demonstrate application skills, there was not often a link between the scenario and the law identified.
Most candidates dealt with the general law of partnership adequately and, as in Question 8, they sometimes set it out in great detail before going on to apply it to the three parties in the scenario. However, it was in the application that a significant number of candidates did not apply the law they had actually stated, and in many instances actually contradicted what they had written previously.
Question 10
This question was essentially divided into two distinct parts, one requiring candidates to consider the issue of directors' duties with an element raising the issue of share allotment.
A number of candidates simply did not recognise the issues raised in the problem scenario and attempted to apply various aspects of company law such as insider dealing, money laundering, fraudulent trading and wrongful trading.
It would seem that, on the basis of past papers where the final question has dealt with those topics, candidates simply assumed that this Question 10 must be the same. Even where candidates recognised that the fundamental issue was directors' duties, answers tended simply to list all such duties and, as a result, did not deal with the specific issues raised in the question.