Case management, disclosure and inspection

Question 1

Quick question:

Before a claimant can make an application for summary judgment which of the following best describes what steps must have been taken by the Defendant?

A-The Defendant must have filed an acknowledgment of service or a defence.

Answer 1

Option A is the correct answer. Unless the Court gives permission or a practice direction provides otherwise, the claimant cannot make an application for summary judgment before the defendant has filed an acknowledgment of service or a defence. CPR r.24.4 (1).

Option B is wrong. There is no requirement for the defendant to have obtained legal representation before an application for summary judgment can be made by the claimant, and indeed many litigants represent themselves during the course of proceedings (also known as ‘litigants in person’).

Option C is wrong. There is no requirement for the defendant to give consent to the claimant to make an application for summary judgment against the defendant.

Option D is wrong. There is no requirement for the defendant to file an allocation questionnaire before an application for summary judgment can be made by the claimant.

Option E is wrong. There is no requirement for the defendant to file a witness statement before an application for summary judgment can be made by the claimant. However, the claimant may rely on written evidence in their application for summary judgment.

Question 2

Which of the following is the correct name for the court form used for the purposes of standard disclosure?

A-N365

B-N244

C-N16A

D-N265

E-N264

Answer 2

Option D is the correct answer. The standard disclosure court from is N265.

Option A is wrong. The standard disclosure court form is N265.

Option B is wrong. N244 is the form used for a standard application.

Option C is wrong. N16A is the form used for an injunction application.

Option E is wrong. N264 is the form used for an electronic documents questionnaire.

Question 3

A retail company (the claimant) has started proceedings for breach of contract against a software design company (the defendant). The claimant alleges that accounting software designed by the defendant malfunctioned, requiring the claimant to engage an accountant to correct the errors in their accounts. The defendant provided their solicitor with documents including a software instruction manual provided to the claimant and a marketing email from the claimant company with money-saving offers for use at their branches. The defendant’s solicitor has taken a draft witness statement from an employee of the defendant who trained the claimant’s employees to use the software. The court directs that standard disclosure is given.

Which of the documents should the solicitor include in Part 1 of the Defendant’s List of Documents?

A-The instruction manual, the marketing email and the draft witness statement.

B-The instruction manual only.

C-The draft witness statement and the instruction manual.

D-The marketing email and the draft witness statement.

E-The draft witness statement only.

Answer 3

Option B is correct because only the instruction manual meets the definition of standard disclosure, is not subject to privilege and is in the defendant’s control.

Option A is wrong because the marketing email is not relevant to the issues in dispute (so will not be included in the List of Documents) and the draft witness statement will be subject to litigation privilege (so will be included in Part 2 of the List of Documents).

Option C is wrong because the draft witness statement will not be included in Part 1 of the List of Documents for the reasons given above.

Option D is wrong because neither the marketing email nor the draft witness statement will be included in Part 1 of the List of Documents for the reasons given above.

Option E is wrong because the draft witness statement will not be included in Part 1 of the List of Documents for the reasons given above.

Question 4

A solicitor acts for the claimant in a personal injury claim against their employer. The court orders that the parties give standard disclosure. Prior to drafting the List of Documents, the claimant’s solicitor writes to the claimant to advise on their disclosure obligations.

Which of the following statements should the solicitor include in their letter?

A-The claimant does not need to disclose any documents created prior to issue of proceedings.

B-Any letters marked as without prejudice between the parties do not need to be disclosed.

C-The claimant must disclose privileged documents which are relevant to the issues in dispute.

D-The claimant must only disclose documents in their physical possession.

E-The claimant must only search for documents which adversely affect another party’s case.

Answer 4

Option C is correct because privileged documents which are relevant to the issues in dispute will be disclosable; they will satisfy the test for standard disclosure because they will help or hinder either party’s case (or both). Whilst disclosable, the defendant cannot inspect them as they are privileged.

Option A is wrong because the duty of disclosure applies to documents created both before and during proceedings, as long as the document satisfies the test for standard disclosure.

Option B is wrong because letters marked without prejudice between the parties are still disclosable. They must not be shown to the trial judge, however both parties have already seen them.

Option D is wrong because parties must disclose documents within their control, which includes documents that were in their physical possession, or which they have a right to possess or inspect.

Option E is wrong because there is a duty to search for documents which adversely affect the party’s own case, as well as another party’s case, and documents which support another party’s case.

Question 5

The claimant is an interior design company and brings a claim for breach of contract against the defendant. The contract provided that the claimant would be paid a total of £40,000 for re-decoration services at the defendant’s properties. The defendant approved the completed work but it has not paid the final instalment of the contract price, which is £18,000. The defence has been filed and served. The court serves a notice of proposed allocation to the fast track.

Has the court provisionally allocated the matter to the correct track?

A-Yes, because the claim is valued at more than £10,000 and less than £25,000.

B-No, because the total value of the contract between the claimant and defendant is £40,000.

C-No, because the matter should be allocated to the small claims track.

D-Yes, because claims seeking a monetary remedy should always start in the fast track.

E-Yes, because straightforward cases must start in the fast track.

Answer 5

Option A is correct because claims worth between £10,000.01 and £25,000 will usually be allocated to the fast track. There are no other factors which suggest the case should be allocated to the multi-track, for example the type of remedy sought, the complexity of the law and facts, and the number of parties involved.

Option B is wrong because only the final instalment of £18,000 is claimed. The court will disregard any sums not in dispute.

Option C is wrong because the claim is worth more than £10,000 and is unsuitable for the small claims track.

Option D is wrong because monetary claims can start in any track and allocation will depend on the financial value (and other factors).

Option E is wrong because cases which are straightforward may start in the multi-track, as long as the value is more than £25,000.

Question 6

Following the completion of standard disclosure in a civil claim, the defendant is concerned that certain key documents that he would have expected to see are missing from the claimant’s disclosure list. The defendant therefore decides to make an application to the court for specific disclosure.

Which of the following statements best describes the factors the court will take account of when considering the application for specific disclosure?

A-The court will look at the importance of the issue to which the application relates and assess proportionality.

B-The court will only make an order for specific disclosure in exceptional circumstances, such as fraud on the part of the one of the parties.

C-The court will grant the application if it believes that the claim as a whole has reasonable prospects of success.

D-The court will grant the application if it is clear that the claimant deliberately failed to make full disclosure at the standard disclosure stage.

E-The court will take into account all the circumstances of the case and in particular the overriding objective.

Answer 6

Option E is the best answer, because in deciding whether to grant an order for specific disclosure, the court will take into account all the circumstances of the case and in particular the overriding objective – this is set out in CPR PD 31.A, paragraph 5.1. If the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise), the court will usually make such order as is necessary to ensure that those obligations are properly complied with.

Option B is wrong, because there is no ‘exceptionality’ requirement that must be satisfied for specific disclosure to be made.

Option C is wrong as there is no need for the court to make an assessment of prospects of success in relation to an application for specific disclosure.

The factors referred to in Options A and D – the importance of the issue and a deliberate failing in standard disclosure – are potentially relevant but they are not the full test that the court is required to apply, so these are not the best answers.

Question 7

A solicitor acts for a claimant who purchased a house two years ago that was surveyed by the defendant surveyor. The claimant’s case is that the defendant did not advise him that the house needed extensive underpinning works.

It is one month before the date of the trial. Standard disclosure and inspection took place nine months ago. The claimant now shows the solicitor, for the first time, a survey report obtained from another surveyor on the house. This was obtained after the defendant’s report and before exchange of contracts because the claimant felt the defendant’s report was too general. This second report details the need for extensive underpinning works.

Which of the following best describes whether the claimant is now required to disclose the existence and contents of this second report to the defendant?

A-The claimant is not required to disclose the existence and contents of the report because standard disclosure has already been given. The claimant’s case can still be presented on the basis that the claimant had no knowledge of the need for underpinning works.

B-The claimant is not required to disclose the existence and contents of this second report because it is privileged from disclosure. This second report falls within legal professional privilege.

C-The claimant must disclose its existence because disclosure is an ongoing obligation and the report is adverse to his case and so falls within the definition of standard disclosure. However, it is privileged from inspection because it has been handed to the solicitor.

D-The claimant must disclose its existence because disclosure is an ongoing obligation and the report is adverse to his case and so falls within the definition of standard disclosure. The claimant must allow the defendant to inspect a copy because the report is not privileged from inspection.

E-The claimant does not have to disclose the existence of the report because it is adverse to his case and the claimant will not be relying on this document and it does not, therefore, fall within the definition of standard disclosure.

Answer 7

Option D is correct because disclosure is an ongoing obligation until the proceedings are concluded. The document falls within the definition of standard disclosure and must be disclosed. It records information that the claimant knew about the need for extensive underpinning works so did not rely on the defendant’s report. The claimant must also allow the defendant to inspect a copy.

Option A is wrong because disclosure is an ongoing obligation. Further disclosure by way of a letter or supplemental list of documents will need to be given.

Option B is wrong because this second report is not privileged and does not fall within the definition of legal professional privilege. The document was obtained by the claimant from a third party neither for the purpose of taking legal advice nor when litigation against the defendant was contemplated and, therefore, is not privileged from inspection.

Option C is wrong because a document does not become privileged from inspection simply because it is handed to a solicitor. The reason why the document was created is key.

Option E is wrong because the report does fall within the definition of standard disclosure as the definition includes documents which adversely affect a party’s own case and the fact that the report is not intended to be relied upon does not mean the document falls outside the definition of standard disclosure.

Question 8

A solicitor acts for the claimant in ongoing court proceedings for damages. On Monday 1 September, the court ordered that, unless the defendant responded by 4pm on 29 September to the claimant’s request for further information about the defendant’s defence, that defence would be struck out.

It is now 1 October. The defendant has still not responded to the claimant’s request for further information about the defendant’s defence.

What advice should the solicitor now give the claimant?

A-Judgment was automatically entered in the claimant’s favour on 30 September.

B-The claimant may obtain judgment against the defendant by filing a written request with the court.

C-The claimant may request judgment against the defendant by making a formal application to the court with a supporting witness statement.

D-The claimant should apply for summary judgment.

E-The claimant should apply to discontinue the proceedings.

Answer 8

Option B is the best answer. By way of information, CPR r 3.5 provides that the claimant may request judgment in these circumstances. The request must state that the right to enter judgment has arisen because the court’s order has not been complied with. Note that if the claim had been for a non-monetary remedy, such as an injunction, the claimant would have to make an application to the court instead for judgment to be entered.

Option A is wrong. Judgment is not automatically entered in these circumstances. See the feedback to the correct option B.

Option C is wrong. A formal application is unnecessary in these circumstances. See the feedback to the correct option B.

Option D is wrong. The defence has been struck out. There is no need for an application for summary judgment as the claimant can make a request for judgment. See the feedback to the correct option B.

Option E is wrong. The defence has been struck out and so the last thing that the claimant will want to do is to end the proceedings. The claimant should continue with the proceedings by requesting judgment. See the feedback to the correct option B

Question 9

An individual is the claimant in an action for negligence against a defendant stockbrokers. The claimant seeks damages for allegedly negligent professional advice provided by the defendant to the claimant. Standard disclosure has been ordered. A letter sent to the claimant by an expert is found in the claimant’s office. It is clear that the letter was written with the sole purpose of giving advice about drafting the particulars of claim in the present litigation.

Can the claimant withhold inspection of the letter?

A-Yes, because the letter is subject to litigation privilege.

B-Yes, because the letter is confidential to the claimant.

C-Yes, because the letter is subject to legal advice privilege.

D-No, because the letter adversely affects the defendant’s case.

E-No, because the letter is within the claimant’s control.

Answer 9

Option A is the correct answer. The letter is a communication between the claimant and a third party when litigation was taking place for the dominant purpose of preparing for the litigation.

Option B is wrong. The fact that a document is confidential is not enough in and of itself to justify withholding inspection. Inspection can only be withheld if the document is privileged.

Option C is wrong. The letter is not a communication between a party and its lawyer.

Option D is wrong. The letter may adversely affect the defendant’s case and be disclosable under CPR 31.6, but inspection can still be withheld if the document is privileged as in this case.

Option E is wrong. The letter is within the claimant’s control, but inspection can still be withheld if the document is privileged as in this case.

Question 10

The Claimant, a consumer, has issued proceedings for a straightforward claim for damages in sum of £3,500 against the defendant a high street retailer following the sale of defective goods. The defendant is alleging that the majority of damages claimed are dishonest which adds to the complexity of the issues.

Which of the following best describes the most appropriate track for allocation of this claim?

A-The small claims track is the normal track, as the claim is not more than £10,000

B-The small claims track is the normal track for this claim, as this track is intended for straightforward claims like this one

C-The small claims track is the normal track, as cases generally suitable for small claims track will include consumer disputes like this one

D-The fast track is the most appropriate track, because the case involves disputed allegations of dishonesty which adds to the complexity and this is not usually suitable for small claims

E-The fast track is the normal track, because the case involves complex disputed allegations and will most likely last for more than one day at trial

Answer 10

Option D is correct. The most appropriate track is fast track, cases involving disputed allegations of dishonesty are not usually suitable for small claims track as it involves complex issues for the court to consider. CPR Practice Direction 8.1(1)(d) confirms this.

Option A is wrong because the question asks what the most appropriate track not normal track is. The small claims would usually be the normal track because the amount claimed is less than £10,000 but for reasons of complexity it would be allocated to a different track.

Option B is wrong as this is not a straightforward case because of the allegations of dishonesty.

Option C is wrong although this would be the normal track again this is not a straightforward case and it will be allocated to the fast track.

Option E is not the best answer as the fast track is not the normal track, it is the most appropriate track as requested in the question.

Question 11

You act for the claimant who is seeking damages of £56,000 in a breach of contract claim. The case was allocated to the multi track and standard disclosure was ordered. Two weeks ago lists were exchanged pursuant to the order for directions. Yesterday you received a telephone call from your client who told you he had found an email he sent to a friend which confirmed his version of facts in dispute in respect of a particular issue.

Do you need to take any action on receipt of this information?

A-No, the date for service of your list of documents has passed.

B-No, your client can exhibit the email to his witness statement.

C-No, the email does not need to be disclosed as you will not need to rely on it at trial.

D-Yes, you will need to serve an amended list of documents when you serve your client’s witness statement.

E-Yes, you should serve an amended list of documents as soon as possible and ask your opponent for permission to use the document at trial.

Answer 11

Option E is correct as the duty of disclosure is ongoing and the email satisfiers the definition of a document, it is within the client’s control and he wants to rely on the facts within the email at trial which are adverse to the opponent’s case. As the email was not disclosed on or before the date for service of lists of documents permission will have to be given either by the opponent or the court in order to rely on it at trial.

Option A is wrong, as stated above the duty of disclosure is ongoing until judgment.

Option B is wrong as unless you obtain permission from either the court or the opponent the document cannot be used as an exhibit to a subsequent witness statement.

Option C is wrong as the facts within the email which support the client’s case will be relied on at trial.

Option D is wrong because an amended list of documents must be served as soon as possible.

Question 12

A solicitor is acting for the defendant in a breach of contract claim where the damages sought by the claimant are £36,000. Both parties have filed and served their Directions Questionnaires and the Case Management Conference will take place in 28 days. Today the claimant’s solicitors have served their costs budget in Precedent H.

Which of the following best describes the order the court is likely to make at the Case Management Conference?

A-The Court will give orders for direction and make a Costs Management Order.

B-The Court will order that the Claimant’s recoverable costs are limited to the court fee only.

C-The case will be struck out for failure to comply with the CPR.

D-The claimant has filed their costs budget within 21 days of the case management conference so an order for directions will be made.

E-The case will be adjourned to allow the claimant to comply with the CPR.

Answer 12

Option B is the correct answer. For claims valued at less than £50,000 the Costs Budget in Precedent H must be filed with the directions questionnaire. Failure to file the costs budget within the prescribed period will result in an automatic sanction pursuant to r. 3.14 limiting recoverable costs to court fee only.

Option A is wrong because the court will not make a Costs Management Order in every case.

Option C is wrong because the sanction provided by r.3.14 relates to costs.

Option D is wrong because the claim is valued at <£50,000 so Precedent H should have been filed and served with the directions questionnaire. Also a case management order is likely.

Option E is wrong as the costs budget has been served and no adjournment is necessary.

Question 13

The Claimant has issued proceedings against the Defendant in a multi-track personal injury matter. The parties are now in Directions and have been ordered to give standard disclosure. The Claimant’s solicitor is preparing the Claimant’s List of Documents. One of the documents on file is an attendance note of a telephone conference between the Claimant, their solicitor and their barrister in relation to liability issues which took place on 2nd October just before the Claimant issued proceedings.

Which if the following options best describes how you would deal with the attendance note during the process of disclosure?

A-It should be listed in Part 2 and described as ‘correspondence, attendance notes, memoranda, instructions to counsel and counsel’s advice and similar documentation between the Claimant’s solicitor and the Claimant’

B-It should be listed in Part 1 and described as ‘correspondence, attendance notes, memoranda, instructions to counsel and counsel’s advice and similar documentation between the Claimant’s solicitor and the Claimant’.

C-It should be listed in Part 2 and described as ‘attendance note of a conference with Claimant’s counsel dated 2nd October ‘.

D-It should be listed in Part 3 and described as ‘attendance note of a conference with Claimant’s counsel dated 2nd October’.

E-It should not be included in the Claimant’s List of Documents.

Answer 13

Option A is correct because the attendance note is disclosable, but subject to legal professional, advice privilege. The document should be described generally with other similar documents, rather than identified individually.

Option B is wrong because the attendance note is privileged and should be included in Part 2.

Option C is wrong because the attendance note should be described generally with other similar documents, rather than identified individually.

Option D is wrong because the attendance note is still in the Claimant’s control.

Option E is wrong because the document is disclosable and should be included in the List of Documents.

Question 14

The claimant issues proceedings against the defendant for breach of contract arising from the installation of a refrigeration system in their food storage facility. The claimant claims that, due to a failure of the thermostat, the cold air was turned off on the night of 23 August. As a consequence, the storage facility heated up and the claimant’s entire stock of frozen food products had to be thrown away causing losses of £78,000 and damage to their reputation in the industry. This is disputed by the defendant who submits that the fault lay with the claimant in its operation of the system. Both parties have instructed experts. The claimant is a large corporation whereas the defendant is an individual.

Which of the following best describes the approach that the court would take when seeking to comply with the overriding objective?

A-The court must manage cases as best as possible and the parties are required to assist the court in furthering the overriding objective.

B-The court will take account of the fact this is a complex breach of contract claim requiring expert evidence and the level of damages sought is £78,000.

C-The aim of the court is to deal with the case justly and at reasonable cost. As a consequence, the court directs that a single joint expert be appointed to deal with liability. KEY ISSUE IS ITS NOT REASONABLE ITS PROPORTIONATE

D-The court will concentrate entirely on the merits of the case and will have no regard for the difference in status and financial position of the claimant and the defendant.

E-The court will allocate all the resources the claimant requires to resolve the matter because of the importance of the matter to the claimant.

Answer 14

Option B is correct because when deciding the appropriate approach to the matter, the court will consider the amount of money involved and should also take account of the complexity of the issues.

Option A is wrong because the court must manage cases ‘actively’ rather than ‘as best as possible’ although the second part of the statement is correct. Option C is wrong because the overriding objective requires the court to deal with cases justly and at ‘proportionate’ cost – not ‘reasonable’ cost. Also, it would be more usual for the parties to instruct separate experts in a case of this value.

Option D is wrong as one of the objectives the court should seek to achieve when dealing with cases is to ensure that the parties are on an equal footing with the financial position of each party being a factor. Option E is wrong as the court will allocate ‘an appropriate share of the court’s resources’ to the case and not all the resources the claimant requires. It is, however, correct that the court will take account of the importance of the case to the parties.

Question 15

The claimant has issued proceedings in the County Court for £24,750 against the defendant. The particulars of claim state that: ‘The claim is for accountancy services provided by the defendant which were sub-standard’. The court provisionally allocates the claim to a track. The defendant completes the directions questionnaire as required and files it at court, but the claimant fails to file their questionnaire.

Which of the following statements correctly describes how the matter will proceed?

A-The court will provisionally allocate the claim to the multi-track.

B-The defendant could apply to strike out the claim on the basis that it discloses no realistic grounds for bringing the claim.

C-The court will serve a notice on the claimant requiring them to file the directions questionnaire within seven days failing which the claimant’s statement of case may be struck out.

D-The court could grant an order that unless the claimant files full particulars of claim setting out their reasons for claiming the damages within seven days of service of the order, the claim will be struck out.

E-If either party fails to comply with any future directions issued by the court, the court will automatically impose a sanction to ensure the trial is not postponed.

Answer 15

Between the options provided, Option D provides the best answer as to how the case should proceed. Option A is wrong as the amount in dispute is less than £25,000 and so the case will be allocated to the fast track. Option B is wrong because a claim will be struck out if it has no reasonable (not realistic) prospect of success. Option C is wrong because, in the circumstances described – a claim for money in the County Court – the claimant’s statement of case will be automatically struck out if the claimant does not file its directions questionnaire within seven days.

Option E is not an appropriate way forward (and therefore a wrong answer) because the court will not automatically impose a sanction. If a party fails to keep to the directions timetable, the parties should co-operate to ensure they meet certain key dates, such as the case management conference and the trial. However, if a step is missed, the other party may apply for an order enforcing compliance and/or for a sanction to be imposed.

Question 16

Which of the following directions may potentially be varied by agreement between the claimant and defendant solicitors?

A-Standard disclosure.

B-The return of the pre-trial checklist.

C-A pre-trial review.

D-The trial period.

E-Case management conference.

Answer 16

Option A is correct. As per CPR 2.11, unless the rules or a practice direction provide, or the court orders, otherwise the time specified by a rule or by the court for a person to do any act may be varied by written agreement of the parties. CPR 29.5(1) states a party must apply to the court if he wishes to vary the date which the court has fixed for (a) case management conference (b) a pre-trial review (c) the return of a pre-trial check list under rule 29.6; (d) the trial; or (e) the trial period. Standard disclosure does not appear in the list contained in CPR 29.5, therefore this direction can be varied.

Option B is wrong. As referred to in option A above under CPR 29.5, the courts permission is required should a party wish to vary the date for return of the pre-trial checklist.

Option C is wrong. As referred to in option A above under CPR 29.5, the courts permission is required should a party wish to vary the date of the pre-trial review.

Option D is wrong. As referred to in option A above under CPR 29.5, the courts permission is required should a party wish to vary the date of the trial period.

Option E is wrong. As referred to in option A above under CPR 29.5, the courts permission is required should a party wish to vary the date of the case management conference.

Question 17

A claimant company issues proceedings for £22,000 against the defendant company for breach of a written contract to provide catering at a corporate event. The claimant alleges that several of the guests were unhappy that no alcoholic drinks were provided and wine and beer had to be purchased for them on the day. The claimant sent an email to the defendant making these complaints about the buffet. The defendant responded by pointing to a checklist that the claimant was asked to complete in which the alcoholic beverages option was not ticked. The defendant denies that the drinks supplied were not in accordance with the terms of the contract. There is no dispute that full payment was made by the claimant to the defendant. During the course of the negotiations, a ‘without prejudice’ letter is sent from the claimant’s solicitors to the defendant offering to accept £15,000 in settlement.

Which of the following best describes the documents that the claimant would need to disclose if the court orders standard disclosure?

A-The contract, the proof of payment, the email of complaint, the checklist and the without prejudice letter.

B-The contract, the email of complaint and the checklist.

C-The contract, the email of complaint, the checklist and the without prejudice letter.

D-The contract, the email of complaint and the without prejudice letter.

E-The checklist and the without prejudice letter.

Answer 17

Option C is correct as the only document that does not need to be disclosed is the proof of payment (and option A is wrong for this reason). This is because there is no dispute that full payment was made and so the document does not record any information relevant to the disputed issues between the parties.

Option B is not the best answer – the without prejudice letter should also be disclosed as it falls within standard disclosure. The letter most probably records information upon which the claimant will rely as part of their claim, and the fact that the claimant will now accept £15,000 is adverse to their claim for £22,000. The effect of a document being marked in this way is that it cannot be shown to the judge at trial but disclosure takes effect between the parties and, in any event, both have seen the letter.

Option D is wrong because the checklist must also be disclosed as it adversely affects the claimant’s case and so comes within the definition of standard disclosure. Option E is not the best answer as the claimant will want to rely upon the contract as to the disputed issue of the provision of the drinks as well as the email recording the detail of their complaint that is disputed by the defendant.

Meaning of without prejudice letter: If you write to somebody with whom you are in dispute and you label your communication “without prejudice” this generally means that this letter will not have to be produced to a court if your dispute ends up in a Trial and the Judge will never know that it has been written.

Question 18

A company manufactures electrical lawn mowers. On testing the finished product, it becomes apparent there is a problem with the motor as the lawn mower keeps cutting out. The manufacturing company obtains a report from their quality control department to check the reason, which concludes that the cause may either have been a temporary glitch in the software or a fault with the motor itself. The manufacturing company instructs solicitors and issues proceedings against one of its parts suppliers (which supplied the motors) for breach of contract and to claim damages including loss of profits. The proceedings are defended and the court directs that standard disclosure is given.

Which of the following approaches should the manufacturing company’s solicitors take when completing the list of documents?

A-Instructions to counsel and counsel’s opinion may be disclosed in Part 2 of the list as they fall within the definition of advice privilege.

B-Any confidential document must be disclosed but may be included in Part 2 of the list.

C-Attendance notes of meetings between the manufacturing company and their solicitors need not be disclosed as they will not be relied on at trial.

D-All witness statements obtained must be disclosed in Part 1 of the list of documents.

E-The report from the quality control department is subject to litigation privilege and should be disclosed in Part 2 of the list.

Answer 18

Option A is correct. Option B is wrong because documents may only be disclosed in Part 2 if they satisfy the test of legal professional privilege – confidentiality is irrelevant to answering this particular question. Option C is also wrong as attendance notes of meetings between the client and their solicitor would fall within the definition of standard disclosure and so must be disclosed. However, they are protected by legal advice privilege and would be described generically in Part 2.

Witness statements, whether helpful or not to the manufacturing company, would be subject to litigation privilege and disclosed in Part 2 of the list – hence, option D is wrong. If the party decides to rely upon any of the witnesses, privilege is waived at the next stage in the proceedings when the parties exchange the witness statements of those witnesses that they intend to rely on at trial.

Option E is wrong because the report does not satisfy the requirements of litigation privilege. It was commissioned before litigation was contemplated and the purpose was to establish the cause of the fault with the motor, and not with a view to litigation for the sole or dominant purpose of obtaining advice or evidence.

legal professional privilege - concept of legal professional privilege (LPP) protects the confidentiality of communications between a lawyer and clien

Question 19

A claim is issued for damages in the sum of £25,000 plus interest in the sum of £1500. The Defendant pleads contributory negligence on the part of the Claimant in the sum of £5000. Each party will have expert evidence from an engineer.

Which track should the court allocate the claim to?

A-Multi track because the value of the claim for the purposes of allocation is £25,000

B-Multi track because the value of the claim for the purposes of allocation is £26,500

C-Fast track because contributory negligence will reduce the damages to £20,000

D-Multi track because each party will rely upon expert evidence

E-Fast track because contributory negligence will reduce the damages to £21,500.

Answer 19

Option A is correct the interest and any contributory negligence is disregarded for the purposes of allocation, and for the purposes of allocation the value of the claim is £25,000, CPR 26.8(2)(b) and (c)

Option B is wrong as interest is disregarded, CPR 26.8 (2) (b) and (c)

Option C is wrong, as contributory negligence is disregarded, CPR 26.8(2)(b) and (c).

Option D is wrong, as long as expert evidence is limited to one expert per party and a maximum of two expert fields this will not (in itself) preclude the case from being allocated to fast track, CPR 26.6 (5)(b)

Option E is wrong, as interest and contributory negligence are disregarded Rule 26.8(2) (b) and (c).

Question 20

An individual instructed a builder to build a conservatory. Once works were completed the individual noticed that the builder had not constructed the conservatory properly as the roof of the conservatory leaked and there were cracks in the wall. The individual obtained a written quotation from a conservatory company to carry out remedial work.

The individual then wrote to the builder demanding they pay the cost of the remedial work. The builder failed to respond. The individual now wants to take advice from a solicitor with a view to taking court proceedings against the builder.

Before the individual sees a solicitor, they take photographs of the roof and the wall to show the solicitor.

What option best describes the advice the solicitor will give the individual regarding disclosure of the photographs and the quotation?

A-Neither of the documents are disclosable. The photographs and quotation belong to her and she will not refer to either of them in her list of documents.

B-Neither of the documents are disclosable. The documents were not prepared by a solicitor and will not be used in the litigation.

C-Both documents are disclosable. Both the photographs and quotation will be in part one of her list of documents.

D-Both documents are disclosable. The photographs will be in part two and the quotation in part one of the list of documents.

E-Both documents are disclosable. Both the photographs and quotation will be in part two of her list of documents.

Answer 20

Option D is correct. The photographs were taken for the sole purpose of taking legal advice and therefore fall within the definition of legal advice privilege. The photographs will be in part two of her list of documents. The quotation falls within part one of the list of documents.

Options A and B are wrong because both documents are disclosable pursuant to Civil Procedure Rule 31.6. They relate to matters in issue, namely liability and quantum.

Option C is wrong. Only the quotation will be in part one as it is not a privileged document (it was created before litigation was contemplated) and will be available for inspection.

Option E is wrong because the quotation does not attract legal professional privilege but the photographs do attract legal advice privilege. Hence only the photographs will be in part two of her list of documents.

Question 21

The claimant issues a claim form against the defendant building company in a breach of contract claim for poor quality building work on a conservatory. The claim is in the sum of £24,000. The defendant files a defence and counterclaim for an unpaid contractual instalment of £10,000. The claimant defends the counterclaim. The claimant and defendant file directions questionnaires with the court. The case is allocated to the fast track and the court issues the typical standard directions.

Which of the following best describes the position under the standard directions?

A-The claimant and defendant may agree in writing to vary the date for the filing of pre-trial checklists.

B-The directions state that disclosure should take place within four weeks of the date when the claimant’s directions questionnaire was filed.

C-The claimant and defendant may agree to set their own directions and do so without court approval.

D-The directions state that the exchange of witness statements should take place 10 weeks from the date of allocation to the fast track.

E-Both the expert for the claimant and the expert for the defendant should be notified of the trial window as soon as possible so that they can attend to give evidence.

Answer 21

Option D is correct. Chapter 7.3.5.2 of the Dispute Resolution Manual sets out a typical timetable for case preparation of a case allocated to the fast track. The exchange of witness statements is 10 weeks from the date of allocation.

Option A is wrong - an application must be made to the court if a party wishes to vary the dates for the return of pre-trial checklists.

Option B is wrong – the direction periods run from the date of allocation rather than the date the claimant’s directions questionnaire is filed.

Option C is wrong – although parties may agree directions between themselves, the directions must be approved by the court (which may not necessarily accept them).

Option E is wrong- the court will usually order a single joint expert in a fast track case and will rely upon their written evidence rather than allowing them to give oral evidence.

Question 22

The court has given a direction for exchange of factual witness evidence on a set date. In compliance with the direction, the claimant’s solicitor serves its witness statements. However, they receive a letter from the defendant’s solicitor explaining that one of the defendant’s key witness statements has not been served, as the defendant’s solicitor is waiting for it to be signed. The letter states the witness is in hospital abroad, but once she returns in three weeks and signs the statement it will be served.

Following this, the claimant’s solicitor secures a court order that unless the defendant serves all its witness evidence within seven days, the defence will be struck out. The defendant’s solicitor applies immediately for relief from this sanction.

Which of the following best describes how the court is likely to deal with the defendant’s application?

A-The court is unlikely to grant relief as it must ensure compliance with the original direction for the exchange of witness evidence.

B-The court is unlikely to grant relief as this is a serious breach and it must not allow any delay in the management of the case, nor any prejudice to the claimant.

C-The court is likely to grant relief as it will consider there is no fault in the defendant’s conduct. The court will only have to consider the effect of not granting the relief on the defendant.

D-The court is likely to grant relief considering the seriousness of the breach, the reason for the failure and all the circumstances, to enable it to deal with the application justly.

E-The court will grant relief because it will only consider what is reasonable and the defendant needs the key witness to give evidence at trial.

Answer 22

Option D is correct because the court will consider all the circumstances so as enable it to deal with the application justly, including the need to conduct the case efficiently at proportionate cost and to enforce compliance with the court order. The court will consider the seriousness of the breach, the reason for the breach and evaluate all the circumstances in deciding whether to grant relief. The court would consider the effect of failure to comply and the granting of relief on both parties. On that basis the defendant is likely to be granted a slight delay to secure the signed evidence of their key witness.

Option A is wrong because the court may be reluctant to impose this penalty which would be too robust in the circumstances. The defendant’s key witness would not return in time to comply with the unless order.

Option B is wrong because the court must consider all the circumstances, including the effect on the defendant if they are not granted the relief of more time to secure the signed statement of the key witness.

Option C is wrong as the court when dealing with relief from sanctions will consider the seriousness of the breach, the reason for non-compliance and evaluate all the circumstances to deal with the matter justly.

Option E is wrong because the court will not consider what is reasonable for the defendant, but the effect on both parties if the relief is granted.

Question 23

Quick Q:

The defendant in a claim for £45,000 fails to file a costs budget with the directions questionnaire as required by the court.

Which of the following best explains what will happen as a consequence?

C-The defendant will be treated as having filed a budget comprising only of the court fees unless the court orders otherwise.

Answer 23

Option C is correct - see CPR 3.14. Unless the court orders otherwise, in effect only the court fees incurred by the defendant will be recoverable under a costs order in the future.

Question 24

A claimant is bringing a claim in negligence against a plumber (the defendant). The claimant alleges that the defendant’s negligent work caused damage to the claimant’s property. The claim form has been issued and served, alongside the particulars of claim. A defence has not yet been filed and served. The claim is straightforward and there are no complicated factors.

The claimant’s solicitor has advised that – if the claim is successful – the claimant is likely to receive around £8,000 in damages.

The claimant seeks advice on how their claim will be allocated to a track.

Which of the following best describes what the solicitor should advise?

A-A court officer will provisionally allocate the claim to a track as the claim form and particulars of claim have been served on the defendant. The claim is most likely to be allocated to the small claims track.

B-A court officer will provisionally allocate the claim to a track after a defence has been filed. The claim is most likely to be allocated to the small claims track.

C-A court officer will provisionally allocate the claim to a track after a defence has been filed. The claim is most likely to be allocated to the fast track.

D-A court officer will provisionally allocate the claim to a track as the claim form and particulars of claim have been served on the defendant. The claim is most likely to be allocated to the fast track.

E-A court officer will provisionally allocate the claim to a track as the claim form has been issued. The claim is most likely to be allocated to the small claims track.

Answer 24

Option B is correct. The court officer will provisionally decide which track appears the most appropriate for the claim after a defence has been filed. The value of the claim is not more than £10,000 so the claim will most likely be provisionally allocated to the small claims track.

Option A is wrong. The court officer will provisionally decide which track appears the most appropriate for the claim after a defence has been filed, not after the claim form and particulars of claim have been served.

Option C is wrong. The value of the damages claimed is not more than £10,000, so the claim is not suitable for the fast track.

Option D is wrong. The court officer will provisionally decide which track appears the most appropriate for the claim after a defence has been filed, not after the claim form and particulars of claim have been served. The claim is also more likely to be provisionally allocated to the small claims track.

Option E is wrong. The court officer will provisionally decide which track appears the most appropriate for the claim after a defence has been filed, not after the claim form is issued.

Question 25

A claimant in a multi-track case informs their solicitor that an important witness has been taken ill and is not expected to be well enough to speak to the claimant’s solicitor for a month. This means the claimant will be unable to comply with the order for directions stating all parties must serve on each other copies of the signed statements of all witnesses on whom they intend to rely by a certain date.

What should the claimant’s solicitor do?

A-Seek the written consent of the defendant to vary the timetable to extend the period for serving witness statements.

B-Proceed in their preparation of the case without the witness statement because the timetable cannot be varied.

C-Make an application to court to vary the timetable to extend the period for serving witness statements.

D-Make an application to court to seek relief from sanctions for non-compliance with a direction of the court.

E-Seek the written consent of the defendant to a stay in proceedings to allow time for the preparation of the witness statement.

Answer 25

Option A is correct as in a multi-track case the parties may agree in writing to vary the timetable for exchange of witness statements. Note that the parties must apply to the court if they are seeking to change one of the following dates:

any case management conference;
a pre-trial review;
the return of a pre-trial check list; or
the trial or trial period.
Option B is wrong as continuing without the witness statement would be detrimental to the claimant’s case and, for the reasons given above, the parties may agree to vary the timetable on these facts.

Option C is wrong as the parties may agree in writing to vary the timetable for exchange of witness statements, so an application to court should only be made if the defendant refuses to vary the timetable. Making an immediate application would not comply with the overriding objective.

Option D is wrong as the court has not imposed sanctions. The claimant has not yet failed to comply with the order.

Option E is not the best answer as the situation can be resolved through varying the timetable.

Question 26

A claimant issued proceedings against a defendant for breach of contract. The claim form and particulars of claim are ready to serve on the defendant. Solicitors for the defendant have sent a letter confirming they are authorised to accept service but the letter does not specify any particular methods of service which they will accept. The letter includes a postal address and email address on the letterhead but no other contact details. The claimant’s instructions are to serve the statements of case as quickly as possible via a permitted and correct method of service.

Which of the following methods of service would best satisfy the claimant’s instructions?

A-By second class post

B-By first class post

C-By email

D-By document exchange

E-By fax

Answer 26

Option B is correct. First class post is the only option which would be a permitted method of service under CPR 6.3 on these facts for the reasons given below, so is the option which best satisfies the client’s instructions.

Option A is wrong as second class post is not a permitted method of service under the CPR.

Option C is wrong. The solicitors being served must have expressly confirmed they are willing to accept service by email. An email address on the solicitors’ letterhead is not enough to satisfy this requirement.

Options D and E are wrong. If a document exchange number or fax number had been included on the solicitors’ letterhead, this would have been sufficient confirmation that they would accept service by these methods. However, on the facts, no such details are included on the letterhead and therefore these methods are not permitted.

Question 27

Which one of the following statements correctly describes what might happen at a case management conference?

Answer 27

The purpose of the case management conference is to review the steps the parties have taken to prepare the case, check their compliance with any directions the court has made and give directions for the future conduct of the case.

Question 28

Standard disclosure

Answer 28

The claimant and the defendant will each have to disclose the documents on which that party relies and the documents which adversely affect its own case, adversely affect the other party’s case and any that support the other party’s case. The duty to disclose continues until the conclusion of proceedings and so continues during any trial.

Extra info: As the court order relates to standard disclosure, neither side will have to disclose documents for which they can claim legal advice privilege or litigation privilege. Option C is wrong as the privilege relates to inspection and not to disclosure, Such documents must go in the list if they meet the test of standard disclosure.

Question 29

Part 1 Documents (Standard disclosure)

Part 2 Documents (standard disclosure)

Answer 29

Part 1 documents - must be described precisely so the other
party can identify what they are.

Part 2 documents - privileged docs. The other parties cannot inspect them; and
they are described generically.
Particular documents are disclosed but otherwise concealed under an
umbrella description, thus preventing identification of their maker, any recipient and the contents.

However, only those documents that satisfy the legal tests for legal professional
privilege qualify for this special treatment.
A key difference between litigation privilege and legal advice privilege is that litigation privilege can cover communications with a third party, but legal advice privilege is confined to communications between lawyers and their clients.

Question 30

Following a collision between the defendant’s car and the claimant’s car, the claimant’s solicitors issue court proceedings for negligence. The defendant denies liability on the basis the collision was due to defective brakes on his car, which was serviced at a garage on the morning of the accident. During disclosure of documents the defendant states that all documents relating to the repair are held at the garage and the defendant is no longer in possession of them. The garage is not party to the proceedings and has refused a written request for disclosure from the claimant’s solicitors. The claimant’s solicitors are considering whether to make an application to the court for disclosure by the garage.

Is an application for disclosure of the repair documents by the garage likely to succeed?

A-No, because the garage is not a party to the proceedings so cannot be compelled to disclose documents.

B-No, because the documents are not relevant to the case as the defendant was negligent.

C-Yes, because a party can apply against a non-party for disclosure of any documents.

D-No, because the documents are likely to be privileged so will be withheld from disclosure.

E-Yes, because they will help resolve the issue of whether the defendant was negligent and whether the repairs contributed to the accident.

Answer 30

Option E is correct, because under CPR 31.17 a party can apply against a non-party for disclosure of documents to help resolve the issues in the case. The repair documents are relevant to the issue of liability. They will either support the claimant’s case or adversely affect the defendant’s case and disclosure is necessary to dispose of the case fairly or save costs.

Option A is wrong because a party can apply for disclosure against a non-party under CPR 31.17.

Option B is wrong because the repair documents are relevant to the issue of liability and will help to resolve the issue of whether the defendant was negligent.

Option C is wrong because the court will only order non-party disclosure if the documents support the applicant’s case or adversely affect the case of another party and disclosure is necessary to dispose of the case fairly or save costs.

Option D is wrong because the documents are unlikely to be privileged on the facts and, in any event, if an order for non-party disclosure is made the garage will be required to identify any documents which are privileged from inspection.

Question 31

The claimant and defendant are parties to proceedings. The directions order made by the court following the case management conference requires standard disclosure. The claimant is drafting its list of documents and is considering whether to include a copy of a letter it wrote to the defendant. The letter contained an offer to settle which is headed ‘without prejudice save as to costs’.

Which of the following best explains whether the letter should be included in the claimant’s list of documents?

A-It should not be included in the list of documents as the trial judge should not be made aware of the existence of the letter.

B-It should be included in Part 1 of the list of documents as it likely satisfies the test for standard disclosure and is not privileged.

C-It should be included in Part 2 of the list of documents as it is ‘Without Prejudice’ and therefore confidential.

D-It should be included in Part 2 of the list of documents as it is covered by litigation privilege.

E-It should not be included in the list of documents as the defendant has already seen it.

Answer 31

Option B is correct. Standard disclosure under CPR 31.6 requires parties to disclose documents which adversely affect its own or another party’s case. The offer letter is likely to contain information setting out the strengths of the claimant’s case and possibly concessions adverse to its case. The offer is also adverse to the defendant’s case on costs, and costs will be an issue at trial. No privilege attaches to the letter as it is correspondence between the parties and any privilege would have been waived when the letter was sent, so it should be listed in Part 1.

Option A is wrong. The letter should be included in Part 1 of the list of documents for the reasons given above. The list of documents will not form part of the trial bundle and the judge will not be aware of the offer.

Option C is wrong. Privileged documents should be listed in Part 2. Even if a document is confidential, that does not mean that it meets the definition of privilege. In any event, the letter is not privileged for the reasons explained above.

Option D is wrong as the letter is correspondence between the parties and any privilege would have been waived when the letter was sent.

Option E is wrong. It is irrelevant to standard disclosure that the recipient of a document has already seen it.

Question 32

Pre-action disclosure can only be ordered where….

Answer 32

The court is satisfied that: both the applicant and respondent are likely to be a party to subsequent proceedings; the document sought would come within standard disclosure and disclosure is desirable to dispose fairly of the anticipated proceedings, assist in the dispute being resolved without proceedings or save costs.

Question 33

Which of the following is a condition which must be satisfied for the court to order pre-action disclosure against the prospective defendant?

Answer 33

One of the conditions for pre-action disclosure under CPR 31.16 is that the documents sought would come within the scope of standard disclosure.

Question 34

A solicitor acts for a client in litigation. In accordance with the court’s directions order, standard disclosure is due to take place tomorrow. The client has asked when the documents in the list of documents will become available for inspection.

When will the documents in the list of documents become available for inspection?

(And what are part 1, 2 and 3 lists)

Answer 34

For documents described within Part 1 of the list of documents, within 7 days of a written request to inspect being made by the other party.

Part 2 of the list of documents contains documents which are privileged. The other party may not inspect the documents unless privilege is waived, or a successful application challenging the claim to privilege is made.

Part 3 of the list concerns those documents which a party is aware exists but no longer has control over, so is the appropriate place for this document.

Question 35

The claimant has issued proceedings against the defendant for non-payment of a debt. The value of the claim is £23,000. The court provisionally allocates the claim to a track. Directions Questionnaires are sent to the claimant and defendant. The claimant files its Directions Questionnaire but the defendant fails to file its Directions Questionnaire. The claim is issued in the county court.

Which of the following statements best describes how the matter will proceed?

A-The court could strike out the entire case using its case management powers.

B-The claimant could apply to strike out the claim on the basis that it discloses no realistic grounds for bringing this claim.

C-The court will provisionally allocate the claim to multi track, on the basis of the claimant’s Directions Questionnaire.

D-The court will serve a notice on the defendant requesting the filing of the Directions Questionnaire within seven days, failing which the defendant’s case will be automatically struck out.

E-The court will serve a notice on the defendant requesting the filing of the Directions Questionnaire within seven days, failing which the claimant can make an application to the court requesting the Defence is struck out.

Answer 35

Option D is the correct. As the matter is a claim for money in the County Court the court will serve a notice on the defaulting party requiring compliance within seven days. Failure to do so will result in the Defendants case being automatically struck out. CPR 26.3(7A).

Options A and B are wrong these describe the case management powers of the High Court and this matter is a claim for money in the County Court. Option C is wrong because the amount in dispute is less than £25,000, and so the case will be allocated to the fast track.

Option E wrong, as the Claimant does not need to incur additional costs of an application, as CPR 26.3 (7A) allows the court to automatically strike out the case for non-compliance.

Question 36

A hotel has commenced proceedings against a partnership which supplies air conditioning units.

The hotel alleges that the air conditioning units are faulty. The hotel estimates its damages at £500,000. A case management conference has been scheduled and costs budgets are due to be filed and served.

What is the deadline for filing costs budgets?

A-The same as the deadline for filing directions questionnaires.

B-Three days before the case management conference.

C-Seven days before the case management conference.

D-14 days before the case management conference.

E-21 days before the case management conference.

Answer 36

Option E is correct. CPR 3.13(b) confirms that where the value of the claim exceeds £50,000, the cost budget must be filed 21 days prior to the case management conference.

Option A is wrong because this applies to all claims of less than £50,000 in value.

Options B, C and D are wrong because they fail to take into account the value of the claim and the requirements of the CPR.