CDI

Question 1

Against whom does the injunction operate – the foreign court, or the claimant?

The foreign court and the claimant

The claimant

The foreign court

The foreign court or the claimant (whichever the court orders)

Answer 1

The claimant

Correct. See Paragraph 19 of Armco and earlier in this element.

Question 2

For the purposes of an anti-suit injunction, the courts of England and Wales have jurisdiction over the respondent if…

…the respondent is in the jurisdiction.

…the parties have agreed that the courts of England and Wales have jurisdiction.

… the respondent can be served with proceedings.

Answer 2

… the respondent can be served with proceedings.

Correct
Correct. See Paragraph 21 of Armco and earlier in this element, and note that RSC Order 11 is the predecessor of the current rules permitting service out of the jurisdiction.

Question 3

When will a court grant an anti-suit injunction in support of an exclusive jurisdiction clause?

Sometimes.

Ordinarily.

Rarely.

Generally.

Answer 3

Ordinarily.

Correct
Correct – see para 24 of Armco, but note that the court can refuse to grant the anti-suit injunction on the basis of unconscionable conduct or other ‘strong reasons’.

Question 4

A clause giving England and Wales exclusive jurisdiction in relation to a dispute is often accompanied by a clause providing for a party to appoint solicitors within the jurisdiction to accept service of proceedings primarily because this…

… makes compliance with pre action requirements easier.

… avoids the practical challenges associated with serving proceedings abroad.

… provides a basis for serving proceedings out of the jurisdiction without the permission of the court.

… ensures that England and Wales have jurisdiction over the dispute.

Answer 4

… avoids the practical challenges associated with serving proceedings abroad.

Correct. Well done!

Question 5

Rome I Regulation and Rome II Regulations both permit the parties to choose which country’s laws govern the dispute, subject primarily to…

…the agreement being recorded in writing.

…provisions which aim to protect a weaker party from the negative impact of such a choice.

…the choice of law being entered into before the dispute arises.

Correct

Answer 5

…provisions which aim to protect a weaker party from the negative impact of such a choice.

Correct. See for example the provisions in the Rome I Regulation in relation to employees.

Question 6

Caution should be exercised before agreeing to a clause which requires proceedings against Party A to be commenced in a named jurisdiction but which does not impose the same restriction in relation to claims against Party B. The primary reason caution needs to be exercised is…

… the courts of England and Wales may not enforce such an agreement.

… a foreign jurisdiction may not enforce such an agreement.

… the clause will not be enforced if it creates a significant imbalance between the parties.

Answer 6

… a foreign jurisdiction may not enforce such an agreement.

Correct. Whilst an English / Welsh Court will generally uphold such an agreement, the same is not true of all foreign jurisdictions.

Question 7

Where the foreign law is not proved…

…the claimant has failed to make out that part of its case.

…it is assumed to be the same as English law

…the court will direct how evidence of foreign law should be obtained.

…it will be assumed to be as pleaded by the claimant.

Answer 7

…it is assumed to be the same as English law

Question 8

An English court must not carry out its own research into the foreign law.

True

False

Answer 8

True

Question 9

An English court must not review for itself the sources of law upon which an expert on foreign law has based their evidence.

False

True

Answer 9

False

Question 10

An English company is entering into a contract with a French company. The contract includes a clause providing that “The Courts of England and Wales have exclusive jurisdiction to determine any dispute between the parties”. What additional might benefit might the following clause present for the English company?

“[The French company] may be served by sending proceedings by first class post to Smith & Co Solicitors of London at 143 Pokémon Court, Sandhill, SW3 9FK”.

It avoids the practical challenges of serving proceedings abroad.

It avoids the need to seek the court’s permission to serve proceedings abroad.

It increases the prospects of the Courts of England and Wales having jurisdiction to determine the matter.

It increases the prospects of an anti-suit injunction being available to the English company if proceedings are commenced outside of England and Wales.

Answer 10

It avoids the practical challenges of serving proceedings abroad.

Correct. The exclusive jurisdiction clause is already very likely to give the Courts of England and Wales jurisdiction to determine the dispute, avoids the need for the court’s permission to serve abroad, and increases the prospect of obtaining an anti-suit injunction (if one is needed). What this additional clause adds is the practical benefit of being able to serve in England rather than France.

Question 11

In proceedings before the courts of England and Wales, the parties are in agreement that Russian Law applies, but disagree on what the applicable Russian law provides.

How should each party primarily seek to demonstrate to the trial judge that its position in relation to Russian law is correct?

By witness evidence.

By argument in skeleton arguments (and at trial if necessary).

By referring the judge to the relevant Russian legislation / judicial decisions (translated into English).

By the use of expert evidence.

Answer 11

By the use of expert evidence.

Correct
Well done. Evidence of foreign law must be provided by a person suitably qualified to do so on account of his knowledge or experience of the law, and this is treated as a form of expert evidence. See the element relating to proof of foreign law.

Question 12

A supplier considers that it has a debt claim against a manufacturer. The supplier is based in France. The manufacturer is based in England. In the absence of any agreement between the parties, please assume that the French courts have jurisdiction to determine the dispute. The contract between the parties contains a clause stating that “any proceedings arising out of this contract may be commenced in the courts of England and Wales”. The supplier commences proceedings in France against the manufacturer. The manufacturer wishes to seek an anti-suit injunction to prevent the supplier pursuing the claim in France.

Which of the following best summarises how the court will approach the question of whether to grant such an injunction?

The court will not grant an injunction in support of a clause of this nature.

The court will ordinarily grant an anti-suit jurisdiction in these circumstances.

The injunction cannot be granted because the proceedings have already been commenced.

The court will not grant the injunction unless pursuing the claim in France is vexatious / oppressive.

Answer 12

The court will not grant the injunction unless pursuing the claim in France is vexatious / oppressive.

Correct
Well done. The clause in the contract is not an exclusive jurisdiction clause. It does not state that the courts of France do not have jurisdiction. So the court will only grant an anti-suit injunction if satisfied that the proceedings in France are vexatious / oppressive (there are additional requirements too).

Question 13

Success in the context of a CFA means…

Recovery of any amount.

Whatever the agreement indicates it means.

Recovery of any amount at trial.

Recovery of the amount claimed.

Answer 13

Whatever the agreement indicates it means.

Correct. Of course there are more and less common definitions, but ultimately it depends on what the agreement says.

Question 14

A client enters into a CFA with its solicitors providing for an uplift of 25% in the event of success. Success is defined as a court ordering the opponent to pay any amount or the opponent agreeing to pay any amount (other than an amount relating solely to costs). At trial, the court orders the opponent to pay £300,000 for damages and £125,000 for costs (including disbursements of £45,000). The client’s costs to trial (before uplift) were in fact £120,000 for solicitor’s costs and £60,000 for disbursements. Assuming the opponent pays everything it has been ordered to pay, how much will client end up with after paying its solicitors?

£215,000

£268,750

£300,000

£265,000

Answer 14

£215,000

Correct. The simplest way to calculate this is:

Calculate the amount of money coming into the client = £300,000 + £125,000 = £425,000.
Calculate the amount of money the client must pay out = £120,000 for solicitor’s costs + £30,000 (uplift) + £60,000 = £210,000
Subtract 2 from 1: £425,000 - £210,000 = £215,000.

Question 15

A client funds litigation on the following terms:

a. a CFA with its solicitors in relation to 50% of their charges, with an uplift of 100%.

b. third party funding providing for a potential facility of £2.5 million

c. in the event of success at trial, the third party funder to be repaid any sums actually paid by it, plus a ‘profit share’ of 250% of the total potential facility;

d. ATE insurance with a premium of £1 million, deferred and contingent upon success.

Success is defined the same way in all arrangements – any award in the client’s favour at trial.

The client succeeds at trial, and is awarded £12 million. The solicitor’s charges are £3 million, half of which have been paid using the third-party funding facility. Disbursements are another £0.5 million, paid with the same facility.

How much does the client need to pay to the solicitors, funder and insurer combined (not including anything already paid to them)? Express your answer using numbers (rather than words), without any commas or currency symbols.

Answer 15

£12.25 million

Correct
Correct - £12.25 million. The solicitors charges are £3million. Half of this has already been paid by the litigation funder. The other half was on a CFA with 100% uplift, so this is £1.5 million plus 100% ie £3 million. The third party funder needs to be paid: a. the sums it already paid, being half the solicitor’s fees (£1.5million) plus the disbursements (£0.5 million) plus 250% of the total facility (2.5x £2.5 million = £6.25 million), plus the insurance premium of £1million = £12.25 million.

Question 16

A case summary should not normally exceed [how many words?] in length.

1,000

250

500

5,000

1,500

Answer 16

500

Correct. See 29 PD 5.7.

Question 17

When preparing a case summary for a hearing, a guiding drafting principle is to consider:

What is the value of the claim?

What questions need to be decided at that hearing?

What needs to be resolved at trial?

What issues are in dispute in the claim?

Answer 17

What questions need to be decided at that hearing?

Correct
Correct. See 29 PD 5.7(a).

Question 18

Who usually prepares the case summary?

Each party prepares a case summary.

The claimant, with the agreement of the other parties.

The party ordered to prepare the case summary by the court.

The defendant, with the agreement of the other parties.

The claimant (agreed with the other parties if possible).

Answer 18

The claimant (agreed with the other parties if possible).

Correct
Correct. See 29 PD 5.7.

Question 19

A case summary typically has which of the following, and in what order?

Answer 19

1 – Chronology of the claim

2 – Issues of fact which are agreed.

3 – Issue of fact which are in dispute.

4– Evidence needed to decide the latter

Question 20

Your client is bringing a claim in breach of contract for £450,000. Your firm enters into a CFA with the client, with an uplift of 100% in the event of success (defined as recovery of any sum over £20,000). You agree not to pass on any disbursements to the client until the conclusion of the claim, and your client has obtained ATE insurance which will pay the disbursements in the event that the claim fails. In the event that the claim succeeds, an ATE insurance premium of £40,000 is payable.

By trial, your client has incurred costs with your firm of £100,000 (not including any uplift) and disbursements of £50,000). Your client is successful at trial and is awarded:

£400,000 damages
£60,0000 in relation to costs (excluding disbursements)
£40,000 in relation to disbursements.
Assuming the opponent pays everything it has been ordered to pay, how much will the client end up with?

£260,000

£250,000

£230,000

£210,000

Answer 20

£210,000

Correct
Correct. The simplest way to calculate this is:

Calculate the amount of money coming into the client = £400,000 + £60,000 + £40,000 = £500,000.
Calculate the amount of money the client must pay out = £100,000 for solicitor’s costs + £100,000 (uplift) + £50,000 disbursements + £40,000 ATE premium = £290,000
Subtract 2 from 1: £210,000. See the element relating to funding.

Question 21

Your client is a firm of planners facing a negligence claim in relation to advice given two years ago. Proceedings have not yet been issued but your client has received a letter of claim in accordance with the applicable pre-action protocol. You have identified from the planners’ files that the individual with conduct of the matter on behalf of the planners was Ellen Brado. When should you make enquiries to establish the suitability of Ellen Brado to be a witness for your client?

Before filing your client’s directions questionnaire.

Before proceedings are issued.

Before responding to the letter of claim.

Before the first case management conference.

Answer 21

Before responding to the letter of claim.

Correct. Identifying available witness evidence is a crucial part of case analysis. If Ellen is not available, not willing to help, or not likely to be a good witness, this might have an impact on how your client responds to the letter of claim eg whether to make a settlement offer. See the element relating to case management and witnesses.

Question 22

In a multi-track dispute, a costs management order is made. In relation to witness evidence, the CMO notes in relation to the defendant that costs of £1,000 have already been incurred and a figure of £9,000 is approved for future costs. The defendant succeeds at trial and a costs order is made in the defendant’s favour in relation to the whole claim on the standard basis. In relation to costs, the defendant claims £1,000 in relation to the costs shown as incurred in the approved budget and £11,000 in relation to costs shown as estimated on the budget. On the basis of these facts, which of the following best summarises how the court is likely to approach assessment of costs in relation to witness evidence?

Award the lesser of a. the sum considered to be reasonably and proportionately incurred and reasonable and proportionate in amount; and b. £9,000.

Assess whether the £1,000 was proportionately and reasonably incurred and proportionate and reasonable in amount in relation to costs before the budget, and award £9,000 for subsequent costs unless there is a good reason not to do so.

Award the lesser of a. the sum considered to be reasonably and proportionately incurred and reasonable and proportionate in amount; and b. £10,000.

Award £10,000 unless there is a good reason not to do so.

Answer 22

Assess whether the £1,000 was proportionately and reasonably incurred and proportionate and reasonable in amount in relation to costs before the budget, and award £9,000 for subsequent costs unless there is a good reason not to do so.

Correct
Correct. The costs management order does not impact on the sum of £1,000, which will need to be assessed in the ordinary manner. In relation to the remainder, the court will not depart from the budget figure of £9,000 unless there is good reason to do so – CPR 3.18. See the Workshop 2 Consolidate Task and the case of Utting. Remember that you can be assessed on material you have been asked to read (such as Utting).

Question 23

The BPC disclosure regime applies….

In the Business and Property Courts, County Court only

In the Business and Property Courts, High Court and County Court

In the Business and Property Courts, High Court only

Answer 23

In the Business and Property Courts, High Court only

Correct
Correct. Well done.

Question 24

To whom must a party give written confirmation that it has complied with its obligations in relation to the preservation of documents:

The court

Its legal representatives

Nobody

The other parties

Answer 24

Its legal representatives

Correct. See 57AD PD 4.

Question 25

The ‘default’ position is that a party must disclose known adverse documents…

If the court orders any form of disclosure.

…in relation to any issue where the court orders Models C, D or E disclosure.

…in all cases.

…in relation to any issue where the court orders Models D or E disclosure.

Answer 25

…in all cases.

Correct. See ‘known adverse documents’ in this element and/or 57AD PD 3.1.

Question 26

Initial disclosure of key documents on which a party relies and those that are necessary to enable the other parties to understand the claim / defence they have to meet must be given…

In advance of the case management conference.

At the same time as serving a statement of case.

Upon service of the Disclosure Review Document.

When the court so orders.

Answer 26

At the same time as serving a statement of case.

Correct. See ‘Initial Disclosure’ and 57AD PD 5.

Question 27

If any party indicates that it is likely to request search-based Extended Disclosure (Models C, D or E), the claimant must prepare a draft List of Issues for Disclosure and propose a Model for each issue:

No later than 28 days before the case management conference.

Within 42 days of the last statement of case.

No later than 60 days before the case management conference.

Within 28 days of the last statement of case.

Answer 27

Within 42 days of the last statement of case.

Correct. See 57AD PD 7.

Question 28

There is a simplified procedure for less complex claims in the Business and Property Courts. A claim is presumed to be a less complex claim if the value is…

…less than £10 million.

…less than £50,000.

…less than £1 million.

…less than £25,000.

Answer 28

…less than £1 million.

Correct. See this element and/or Appendix 5.

Question 29

Which of the following best captures the importance of electronic documents to disclosure in the majority of cases. Electronic documents…

…occur as potentially relevant and disclosable documents in the vast majority of cases.

..form the vast majority of potentially relevant and disclosable documents.

…are the most important potentially relevant and disclosable documents in a significant minority of cases.

Answer 29

..form the vast majority of potentially relevant and disclosable documents.

Correct.

Question 30

Technology is likely to assist in particular with which aspect of a typical disclosure process?

The presentation of documents to the client.

The identification and explanation of disclosure obligations to the client.

The identification of issues in dispute.

The identification of disclosable documents.

Answer 30

The identification of disclosable documents.

Correct
Correct. Well done.

Question 31

give definitions of
Artificial intelligence

Machine learning

Natural Language Processing (NLP)

Predictive Coding

Answer 31

Artificial intelligence
Computer systems able to perform tasks normally requiring human intelligence

Machine learning
A branch of AI which uses data to imitate the way a human learns

Natural Language Processing (NLP)
An algorithm that can uncover concepts based on how humans communicate

Predictive Coding
The machine learning process by which case experts teach software to locate relevant information

Question 32

Which of the following best captures the essence of the general rule in relation to copies?

Only one copy needs to be disclosed unless a copy is effectively a different document due to a relevant marking / deletion.

Only one copy needs to be disclosed.

All copies of a document are disclosed by the referral to a single copy in a disclosure statement but inspection of all copies must be permitted if inspection of one copy is requested.

All copies of a document need to be disclosed unless it is disproportionate to disclose the existence of more than one copy.

Answer 32

Only one copy needs to be disclosed unless a copy is effectively a different document due to a relevant marking / deletion.

Correct. This is the general rule as stated in 57AD 13.4 (in relation to the BPC) and CPR 31.9, but do remember the rule in Lyell v Kennedy.

Question 33

You act for Jerwood Construction in proceedings involving breach of contract by its mechanical and engineering sub-contractor, Phillips, for failure to complete its works on time. Jerwood tells you that one of its other sub-contractors, Stoneworks, has documents which may support Jerwood’s case against Phillips. Whilst reserving all of its rights, Stoneworks permits you to have access to such files. You examine the files and select relevant sub-files, which you photocopy (with Stoneworks’ consent). You then return all the original documents to Stoneworks.

Which one of the following statements most accurately describes whether your copy of these documents will be privileged?

These copies will be privileged from inspection in the proceedings between Jerwood and Phillips.

These copies will not be privileged from inspection in the proceedings between Jerwood and Phillips

Answer 33

These copies will be privileged from inspection in the proceedings between Jerwood and Phillips.

Correct. These copies will be privileged from inspection in the proceedings between Jerwood and Phillips, because they are a selection from ‘third party documents’. See the section of this element relating to copies and Lyell v Kennedy.

Question 34

In accordance with a valid search order in the standard form, a search team (including applicant’s solicitors and supervising solicitor) arrives at the listed premises. The supervising solicitor knocks on the door. From inside the premises, the respondent’s managing director shouts that he will not permit entry. Which of the following is the best course of action for the applicant’s solicitor to take?

Ask the court to find that the MD is in contempt.

Attempt to force entry.

Ask the supervising solicitor to reason with the managing director.

Go back to court, get an appropriate order and then force entry.

Answer 34

Ask the supervising solicitor to reason with the managing director.

Correct. This should be tried first. Trying to force entry is not permitted by the search order (and would raise human rights issues). The court will not grant an order allowing forced entry. Asking the court to find the MD in contempt is an option, but should not be the first option.

Question 35

The respondent to a search order has just been served with the search order. She indicates that she will permit entry, but only after she has had the opportunity to talk privately to her solicitor first.

How should the supervising solicitor respond to this?

Refuse to let her speak to her solicitor.

Let her speak to her solicitor provided she does so within two hours.

Allow her to speak to her solicitor because otherwise her right to free expression under the Human Rights Act will be compromised.

Let her speak to her solicitor provided the supervising solicitor can listen to the conversation.

Answer 35

Let her speak to her solicitor provided she does so within two hours.

Well done! See paragraph 10 of the standard search order.

Question 36

One of the ‘listed items’ in relation to a search order is a copy of a client list. The respondent knows that the client list is not in the listed premises which are being searched because the respondent sent the only copy of the client list to its accountant two days’ earlier.

What, if anything, is the respondent obliged to do in relation to the client list?

Obtain the client list or a copy of the client list and provide this to the applicant’s solicitors.

Tell the applicant’s solicitors that the respondent sent the client list to its accountant.

Nothing (except for allowing the search to take place at the listed premises).

Obtain the client list or a copy of the client list and provide this to the supervising solicitors.

Answer 36

Tell the applicant’s solicitors that the respondent sent the client list to its accountant.

Correct. See paragraph 18 of the standard search order. Once the respondent has provided this information, it is not obliged to obtain a copy. The applicant may seek to vary the search order to include the accountant’s premises (although in most cases, a less draconian remedy would be adequate and appropriate to obtain information from an accountant, such as an application for non-party disclosure, unless there was a reason to fear that the accountant would destroy the documentation in the face of such an order).

Question 37

Who is responsible for serving the search order on the respondent?

An officer of the court.

The applicant.

The supervising solicitor.

The applicant’s solicitors.

Answer 37

The supervising solicitor.

Correct. The supervising solicitor will give an undertaking to do this. See this element and Schedule E, paragraph 1 of the standard order.

Question 38

Which of the following best summarises the nature of the applicant’s undertaking in damages in the standard search order?

The applicant may be obliged to compensate the respondent if the order was improperly executed.

The applicant may be obliged to compensate the respondent if the order should not have been obtained or if it was improperly executed.

The applicant may be obliged to compensate the respondent if the order should not have been obtained and it was improperly executed.

The applicant may be obliged to compensate the respondent if the order should not have been obtained.

Answer 38

The applicant may be obliged to compensate the respondent if the order should not have been obtained or if it was improperly executed.

Correct. See the first of the Applicant’s undertakings, in schedule C to the standard order. It refers to ‘…this order or carrying it out…’.

Question 39

What is the primary purpose of the return date / on-notice hearing in relation to a search order?

To decide whether the search order should be maintained, varied or discharged.

To give directions for the continuation of the case.

To decide whether damages are payable by one party to another.

To decide what should happen to the items which have been seized.

Answer 39

To decide whether the search order should be maintained, varied or discharged.

Correct. If the search order is discharged, the court may also consider whether the applicant should be required to pay damages to the respondent.

Question 40

A freezing injunctions is an order….

restraining a party from removing assets from the jurisdiction / dealing with any assets.

restraining a party from removing assets from the jurisdiction / dealing with any assets / acquiring any further assets.

restraining a party from removing assets from the jurisdiction / dealing with any assets / disclosing the existence of his assets to a third party.

restraining a party from removing assets from the jurisdiction.

Answer 40

restraining a party from removing assets from the jurisdiction / dealing with any assets.

Correct. Well done. See this element and/or CPR 25.1(1)(f).

Question 41

A freezing injunction is given particular force primarily because if a third party (such as a bank) permits the respondent to breach the terms of the injunction then that third party may face…

…a damages claim.

…proceedings under proceeds of crime legislation.

…substitution for the respondent in the court proceedings.

… contempt (of court) proceedings.

Answer 41

… contempt (of court) proceedings.

Correct
Correct. Well done. See for example the wording of the Penal Notice at the start of the standard order in 25B PD.

Question 42

A freezing injunction will not be granted unless the claimant has a claim…

…which is (more than barely) arguable.

…which is more likely than not to succeed.

…which is extremely strong.

…which is arguable (in the sense of having some substance).

Answer 42

…which is (more than barely) arguable.

Correct. The expression used is ‘a good arguable case’ - one which is “more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success”.

Question 43

What is the primary purpose of the return date / on-notice hearing in relation to a freezing injunction?

To decide whether the freezing injunction should be maintained, varied or discharged.

To decide whether damages are payable by one party to another.

To decide what should happen to the assets which have been seized.

To give directions for the continuation of the case.

Answer 43

To decide whether the freezing injunction should be maintained, varied or discharged.

Correct. If the freezing injunction is discharged, the court may also consider whether the applicant should be required to pay damages to the respondent.

Question 44

The applicant’s undertaking in damages is supplemented (in the standard form of freezing injunction) by what?

A requirement that the applicant should obtain a bank guarantee to support the undertaking.

A requirement that the applicant’s parent company (if it has one) should give an undertaking in like terms.

A requirement that the applicant should deposit security at court (usually in the form of cash) in support of the undertaking.

Answer 44

A requirement that the applicant should obtain a bank guarantee to support the undertaking.

Correct. See the second of the Applicant’s undertakings, in schedule B to the standard order.

Question 45

Who is responsible for serving the freezing injunction on the respondent?

An officer of the court.

The applicant / its solicitors.

The court.

The supervising solicitor / its solicitors.

Answer 45

The applicant / its solicitors.

Correct. Unlike a search order, there is no ‘supervising solicitor’ in the case of a freezing injunction.

Question 46

In a multi-track dispute, a costs management order is made. In relation to witness evidence, the CMO notes in relation to the defendant that costs of £1,000 have already been incurred and a figure of £9,000 is approved for future costs. The defendant succeeds at trial and a costs order is made in the defendant’s favour in relation to the whole claim on the standard basis. In relation to costs, the defendant claims £1,000 in relation to the costs shown as incurred in the approved budget and £11,000 in relation to costs shown as estimated on the budget. On the basis of these facts, which of the following best summarises how the court is likely to approach assessment of costs in relation to witness evidence?

Award the lesser of a. the sum considered to be reasonably and proportionately incurred and reasonable and proportionate in amount; and b. £10,000.

Award £10,000 unless there is a good reason not to do so.

Assess whether the £1,000 was proportionately and reasonably incurred and proportionate and reasonable in amount in relation to costs before the budget, and award £9,000 for subsequent costs unless there is a good reason not to do so.

Award the lesser of a. the sum considered to be reasonably and proportionately incurred and reasonable and proportionate in amount; and b. £9,000.

Answer 46

Assess whether the £1,000 was proportionately and reasonably incurred and proportionate and reasonable in amount in relation to costs before the budget, and award £9,000 for subsequent costs unless there is a good reason not to do so.

Correct. The costs management order does not impact on the sum of £1,000, which will need to be assessed in the ordinary manner. In relation to the remainder, the court will not depart from the budget figure of £9,000 unless there is good reason to do so – CPR 3.18. See the Workshop 2 Consolidate Task and the case of Utting. Remember that you can be assessed on material you have been asked to read (such as Utting).

Question 47

A property maintenance company is defending a claim by a landlord for £120,000 for failing to complete plumbing work with the requisite skill and care. The property maintenance company is in the course of preparing its defence. It considers that it is not in breach of contract nor negligent. In the alternative, the property maintenance company alleges that the firm of plumbers to whom it subcontracted the work should be liable for any damage suffered by the landlord.

Which of the following is the best advice to give to the property maintenance company?

In order to pass on any possible liability to the plumbers, the property maintenance company should claim a contribution or indemnity from the plumbers pursuant to CPR 20.6.

If the property maintenance company is eventually found to be liable to the landlord, the property maintenance company could only ever pass this liability on to the plumbers if the property maintenance company joins the plumbers to its claim, pursuant to CPR 19.

In order to pass on any possible liability to the plumbers, the property maintenance company should issue a counterclaim against the plumbers pursuant to CPR 20.5.

In order to pass on any possible liability to the plumbers, the property maintenance company should issue an additional claim against the plumbers pursuant to CPR 20.7.

Answer 47

In order to pass on any possible liability to the plumbers, the property maintenance company should issue an additional claim against the plumbers pursuant to CPR 20.7.

Correct
Correct. See CPR 20.7 and the elements relating to additional claims.

Question 48

A developer has spent £2million fixing faults in one of its recently constructed buildings. It considers the faults are the result of a breach of contract by the project manager. The developer has commenced proceedings against the project manager.

In its defence, the project manager denies liability and also alleges that, if there were any faults in the building, they were caused by the architect which the developer had engaged pursuant to a separate contract. The developer wishes to amend the particulars of claim to add the architect as a second defendant.

Which of the following is the best advice to give the developer as to whether consent / permission is required from any party or from the court to do this?

The developer is only able to amend the particulars of claim in this way if the project manager consents in writing and the court gives the developer permission to do so.

The developer is able to amend the particulars of claim in this way without the court’s permission, provided that the architect consents in writing.

The developer is only able to amend the particulars of claim in this way if the court gives permission for it to do so.

The developer does not require the project manager’s consent, the architect’s consent nor the court’s permission to amend the particulars of claim in this way.

Answer 48

The developer is only able to amend the particulars of claim in this way if the court gives permission for it to do so.

Correct. See CPR 19.4(1) – the court’s permission is required to… add.. a party, unless the claim form has not been served.

Question 49

A defendant driver in a personal injury claim is defending the claim on the basis that the claimant pedestrian stepped into the road dangerously, without warning and without the giving the defendant any opportunity to avoid a collision. The defendant applies for an extension of time for service of witness statements on the basis of illness of a witness and the claimant opposes this on the basis the witness’s proposed evidence is not actually relevant to the dispute. The defendant’s solicitors decide to produce a case summary for the hearing of that application.

Which of the following should be omitted from the case summary?

The legal arguments in support of the claimant’s position on duty of care.

A statement that the parties disagree about whether the proposed evidence of the witness is relevant.

The date the claim was issued.

A statement that the parties disagree about whether the defendant had opportunity to avoid a collision.

Answer 49

The legal arguments in support of the claimant’s position on duty of care.

Correct
Well done. This should not be included. It is not relevant to the application for an extension of time for witness evidence, and in any event, a case summary is not the place for legal argument. See the element relating to case summaries.

Question 50

A professional negligence claim in one of the Business and Property Courts is approaching trial, having progressed through case management, Model D disclosure on all relevant issues and exchange of witness and expert evidence. Before proceedings were issued, the director of the claimant came across a document which was adverse to the claimant in relation to one small aspect of the losses that the claimant was claiming. When, if at all, is it most likely that that document would have been disclosed by the Claimant?

When serving its statements of case

At the time ordered for the Model D disclosure

This document would not have been disclosed.

Before the issue of proceedings

Answer 50

At the time ordered for the Model D disclosure

correct
Well done.

This claim is progressing in the Business and Property Courts and so the Disclosure Regime in the BPC is likely to apply. The references to Model D disclosure also suggest this regime applies.

Disclosure would likely need to be given in accordance with the Pre-Action Protocol for Professional Negligence, but limited to key documents or those reasonably requested by the other party. The facts suggest that this document is adverse to the Claimant, but in relation to a relatively minor issue, and it is unlikely to fall within those requirements.

‘Initial Disclosure’ would need to be given with statements of case, but this is limited to key documents relied upon or which are necessary to enable the other party to understand the claim. This document is unlikely to fall within those requirements.

This document is a ‘known adverse document’ and therefore would need to be disclosed at the time ordered for Extended Disclosure ie the Model D disclosure.

incorrect
When serving its statements of case

This claim is progressing in the Business and Property Courts and so the Disclosure Regime in the BPC is likely to apply. The references to Model D disclosure also suggest this regime applies.

‘Initial Disclosure’ would need to be given with statements of case, but this is limited to key documents relied upon or which are necessary to enable the other party to understand the claim. This document is unlikely to fall within those requirements.

Revisit the provisions of the disclosure regime and/or the element relating to the disclosure in the BPC.

Question 51

In a claim in the Business and Property Courts, the court makes a disclosure order (Model D) which requires the defendant to disclose promotional literature in relation to one of its products. That promotional literature is in Japanese. It is not privileged. The defendant’s solicitors have arranged for translations of the some of that literature into English.

Is the defendant required to disclose those translations?

No.

Yes.

Yes, unless the solicitors were required to exercise professional judgment in choosing which parts of the literature to have translated.

No, unless the other parties’ solicitors agree to contribute to the costs of the translations.

Answer 51

Yes.

Well done. The literature is not privileged and nor are the translations, even if judgment was exercised in deciding which parts to translate – see the element relating to translation and copies and/or the Sumitomo judgment.

Question 52

An accountant is being investigated by her regulator in relation to work she did for a client. The accountant is also being sued in negligence by the client. The accountant shows the regulator legal advice it received in relation to the litigation on the agree terms that it must remain confidential and must not be shown to anyone else.

Can the accountant maintain privilege in relation to the legal advice in the litigation with the client?

No, because of the manner in which the legal advice was provided to the regulator.

No, because of the relationship between accountant and regulator.

Yes, because of the relationship between accountant and regulator.

Yes, because of the manner in which the legal advice was provided to the regulator.

Answer 52

Yes, because of the manner in which the legal advice was provided to the regulator.

Correct
Correct. There is no common interest between the accountant and regulator, so common interest privilege will not apply. However, the manner in which the legal advice has been provided by regulator to client suggests that (legal advice) privilege has only been waived to a limited extent, and therefore it should still be possible to maintain privilege in the litigation with the client.

Question 53

A company is seeking a search order against its former employee. The former employee has documents setting out information relating to the company’s clients. The company considers the former employee should not have this information, and is going to use it to take the company’s clients. The underlying claim is brought on the basis of breach of a common law duty of confidentiality. The former employee has threatened to destroy the documentation if the company brings proceedings against the former employee. The company has been advised that the argument that the information is confidential is a ‘50/50’ argument and in light of the huge sums that the company could lose as a result of the former employee’s actions, the company decides to proceed to seek a search order.

Which of the following best explains why an application for a search order is unlikely to succeed? There is insufficient evidence of…

…clear evidence of the respondent’s possession of incriminating documents

…the risk of destruction or removal of evidence being a good deal more than merely possible

…a sufficiently strong civil cause of action

…the damage, potential or actual, being very serious for the applicant

Answer 53

…a sufficiently strong civil cause of action

Correct. An ‘extremely strong prima facie case of a civil cause of action is needed’. Here, the argument that the information is confidential has only a 50% prospect of success. This is not ‘extremely strong’ and so the application is unlikely to succeed.

Question 54

An energy company obtains a freezing injunction against a construction company and serves it on the construction company’s bank. The injunction freezes the construction company’s named bank account up to the value of £500,000. The bank holds funds totalling £300,000 in that account. The construction company seeks to withdraw this sum. The terms of the agreement between bank and construction company make clear that the construction company is entitled to make this withdrawal. How should the bank respond to this request?

Allow the request (because the terms and conditions permit it).

Refuse the request.

Allow the request (because the withdrawal is less than £500,000).

Seek the court’s direction as to whether to allow the removal.

Question 55

A bank considers that its client has defrauded the bank and is in the process of moving the proceeds of the fraud to a subsidiary in Brazil. With the help of solicitors, the bank obtains a freezing injunction in the standard form against its client. Who should effect service of that order?

An officer of the court (effecting personal service)

The court (by post or other non-personal service)

A solicitor independent of either party

The bank

Answer 55

The bank

Correct
Well done. See, for example, the standard order in 25A PD, in particular Schedule B paragraph 5.

Question 56

An energy company obtains a freezing injunction against a construction company and serves it on the construction company’s bank. The injunction freezes the construction company’s named bank account up to the value of £500,000. The bank holds funds totalling £300,000 in that account. The construction company seeks to withdraw this sum. The terms of the agreement between bank and construction company make clear that the construction company is entitled to make this withdrawal. How should the bank respond to this request?

Allow the request (because the withdrawal is less than £500,000).

Allow the request (because the terms and conditions permit it).

Seek the court’s direction as to whether to allow the removal.

Refuse the request.

Answer 56

Refuse the request.

Correct
Correct. It would be contempt of court to assist the construction company in breaching the injunction. This overrides the terms of the agreement between construction company and bank. The point of assets being frozen ‘up to the value of £500,000’ is to allow withdrawals of sums above this (ie so that there will be £500,000 left in the account at all times), not to allow withdrawals of up to £500,000.

Question 57

A multi-tiered dispute resolution agreement will normally include both…

…a process involving a third party and a process not involving a third party.

…adjudicative and non-adjudicative dispute resolution processes.

…provision for litigation and for an alternative adjudicative process

Answer 57

…adjudicative and non-adjudicative dispute resolution processes.

Well done.

Question 58

Hybrid vs carve-out clause

Answer 58

Hybrid clause
Seeks to give either one party, or both parties, a choice of adjudicative resolution process

Carve-out clause
Provides that part of dispute is subject to a different form of dispute resolution to the remainder

Question 59

The primary obstacle to negotiation clauses being enforced by the courts is…

A public policy against bringing proceedings on the basis of a provision which aims to encourage resolution out of court.

Lack of certainty as to what they mean / whether they have been complied with.

A lack of mutuality of obligation.

Answer 59

Lack of certainty as to what they mean / whether they have been complied with.

Correct. The more certain the clause, the more likely it is to be enforced.

Question 60

In the case of agreements at a mediation, through negotiation or following early neutral evaluation, such agreements are only binding in accordance with…

…ordinary contractual principles.

…any subsequent court order to that effect.

…the relevant CPR in CPR 40 and 40 PD.

Answer 60

…ordinary contractual principles.

Correct. So they must be supported by consideration, and sufficiently certain, for example.

Question 61

Match the ‘ADR result’ with the applicable method of enforcement

The decision of an expert following expert determination

Agreement following early neutral evaluation recorded in a consent order

Agreement at a mediation recorded in a Tomlin Order and schedule

Answer 61

The decision of an expert following expert determination: Claim for breach of contract (new proceedings)

Agreement following early neutral evaluation recorded in a consent order: Direct enforcement of order

Agreement at a mediation recorded in a Tomlin Order and schedule: Direct enforcement of the order and/or application to court within the same proceedings.

Question 62

The party against whom a claim in arbitration is made is normally called the…

…respondent.

…defendant.

…recipient.

Answer 62

…respondent.

Correct. Well done.

Question 63

If the seat of an arbitration is in England, this tells you that…

The English rules which regulate arbitrations which apply to the dispute.

The arbitral hearings will be in England.

English law will govern the substance of the dispute between the parties.

Answer 63

The English rules which regulate arbitrations which apply to the dispute.

Correct. Well done.

Question 64

An arbitration agreement must be…

…in writing or evidenced in writing.

…in writing.

…entered into before the dispute arises.

Answer 64

…in writing or evidenced in writing.

Correct
Correct. See s.5 of the Arbitration Act 1996.

Question 65

Mandatory provisions in the Arbitration Act 1996 apply…

…if the parties choose (as part of the Arbitration Act 1996) that they will apply.

…regardless of any attempt by the parties to choose otherwise.

…unless the parties choose otherwise.

Answer 65

…regardless of any attempt by the parties to choose otherwise.

Correct. See s 4(1) of the Act.

Question 66

How do you know which provisions in the Act are mandatory provisions?

The mandatory provisions are those which are necessary for the achievement of the general principles (in s 1).

Check the list in Schedule 1.

Check the wording of the provision itself.

Answer 66

Check the list in Schedule 1.

correct

Question 67

Which of the following is not a mandatory provision?

Ability to challenge on grounds of serious irregularity.

Ability to challenge on grounds of lack of jurisdiction.

Ability to appeal on a point of law.

Answer 67

Ability to appeal on a point of law.

Correct
Correct. See s 69 and Schedule 1.

Question 68

The LCIA will administer arbitrations pursuant to…

UNCITRAL rules only.

Its own rules or UNCITRAL rules.

Its own rules only.

Answer 68

Its own rules or UNCITRAL rules.

correct

Question 69

ad hoc vs institutional advantages

Answer 69

Ad-hoc: Flexibility, cost and speed.

Institutional: Clarity, certainty, reliability.

Question 70

Even when an institution is not administering an arbitration in the general sense, it might nonetheless help specifically with..

…the procedure for commencing the arbitration.

…the appointment of an arbitrator / tribunal.

…the determination of a procedure for the arbitration.

Answer 70

…the appointment of an arbitrator / tribunal.

Correct – well done. This applies to the Secretary-General of the Permanent Court of Arbitration and the LMAA.

Question 71

Joinder is the process of…

…joining two (or more) arbitrations together.

…adding a third party to the arbitration.

…bringing two (or more) claims within a single arbitration.

Answer 71

…adding a third party to the arbitration.

correct

Question 72

Consolidation is the process of…

…adding a third party to the arbitration.

…joining two (or more) arbitrations together.

…bringing two (or more) claims within a single arbitration.

Answer 72

…joining two (or more) arbitrations together.

correct

Question 73

Whether or not it is possible to consolidate various arbitration claims depends primarily on…

…the provisions of the rules governing the various arbitrations.

…the decision of the arbitrators in the relevant arbitrations.

…whether the conditions set out in the Arbitration Act 1996 are satisfied.

Answer 73

…the provisions of the rules governing the various arbitrations.

correct

Question 74

Two parties enter into a contract. The contract includes the following clause: “In the event of a dispute arising out of or relating to this contract, the parties shall endeavour, with the assistance of a mediator, to reach a resolution of the Dispute satisfactory to both parties”. Is this clause likely to be enforceable?

No because the clause is not sufficiently certain.

Yes because it is sufficiently certain.

Yes because the practice-direction on pre-action conduct also requires this.

No because the courts will not enforce a clause requiring negotiation.

Answer 74

No because the clause is not sufficiently certain.

The enforceability of a clause providing for negotiation is a developing area of law. For example, it is unlikely that ‘endeavour to reach a resolution’ is an obligation of sufficient certainty to be enforceable. On the other hand, where a negotiation procedure is certain, that might be enforceable (Ohpen Operations UK Limited v Invesco Fund Managers Limited [2019] EWHC 2246 (TCC)). This clause is almost certainly too vague and uncertain to be enforceable. See also the element on Dispute Resolution Agreements.

Question 75

A company brings a professional negligence claim against an IT consultancy which it instructed to design and build a website. The company alleges that the IT consultancy’s negligence in designing payment pages of the website has caused it loss. Following a mediation the IT consultancy agrees to pay £350,000 to the company by way of a settlement payment. Six months later, the company brings a further claim (the ‘Further Claim’) against the IT consultancy in relation to the website, this time alleging that the IT consultancy was negligent in the way the stock pages on the website were designed. The IT consultancy alleges that this should not be permitted in light of the settlement already reached.

In the first instance, how should you ascertain whether the Company should be prohibited from bringing the Further Claim as a result of the settlement?

You should review the terms of the settlement following the mediation.

You should consider whether the new claim arises out of the same or a materially similar contract.

You should compare the particulars of claim in the two sets of proceedings.

You should consider whether the Further Claim could have been included in the first claim.

Answer 75

You should review the terms of the settlement following the mediation.

Correct! Neither comparing the particulars, checking whether the Further Claim could have been included in the original claim nor ascertaining whether the claim arises out of the same contract will not tell you what the parties actually agreed to settle in the first place.

Question 76

A restaurant buys a disused garage and applies to the local authority for planning permission to use the property as a meat processing plant. The local authority grants the application on the basis that the change from garage to meat processing plant is not a change of use according to planning law. A neighbour brings a judicial review alleging that the local authority was wrong to grant the application, because this is a change of use according to planning law, and the application should not have been granted. The local authority defends the claim.

Which of the following best summarises the local authority’s interest (as opposed to position) in this dispute?

To protect the integrity of its decision-making process

To establish that a change from garage to meat processing plant is not a change of use.

To allow the restaurant to process meat

To ensure its legal team is kept busy.

Answer 76

To protect the integrity of its decision-making process

Correct. Well done. The local authority does not have a particular interest in the restaurant / food processing concerned, nor in the legal point. The local authority’s interest is in being able to go about its business, making planning decisions, without inappropriate interference. Whilst keep its legal team busy may be an interest of the local authority, it is not the best summary of the local authority’s interests. See the element relating to negotiation strategy.

Question 77

Two parties entered into an arbitration agreement and the arbitration proceeded to a final decision, which went against the claimant. The claimant wishes to challenge the award on the basis of ‘serious irregularity’ because the arbitrator made a decision without allowing the claimant the same opportunity to make representations as was allowed for the defendant. The claimant alleges this was unfair and contrary to the panel’s own directions in advance of the arbitration.

Which of the following best summarises the advice that should be given in relation to whether such a challenge can be pursued?

No, unless the agreement between the parties / chosen rules specifically provide for such challenges / appeals.

Yes, unless the agreement between the parties / chosen rules exclude such challenges/appeals.

Yes (regardless of what the agreement between the parties / chosen rules provide in relation to challenges/appeals).

No (regardless of what the agreement between the parties / chosen rules provide in relation to challenges/appeals).

Answer 77

Yes (regardless of what the agreement between the parties / chosen rules provide in relation to challenges/appeals).

Explanation: s.68 of the Arbitration Act 1998 provides for challenges on the basis of ‘serious irregularity’ and this is a mandatory provision that cannot be excluded. See also the element ‘An English seat’.

Question 78

A housing developer is in the process of commencing an arbitration against a builder pursuant to an arbitration agreement. The builder wishes to bring an arbitration claim against its sub-contractor in relation to the same subject-matter, and there is also an arbitration clause in the contract between the builder and the sub-contractor. All the arbitrations have / will have England as their seat.

Is it possible that the two arbitrations will be consolidated into a single arbitration?

Yes, if the terms of the arbitration agreements / applicable institutional rules allow this.

Yes.

Yes, if the house developer requests this.

No.

Answer 78

Yes, if the terms of the arbitration agreements / applicable institutional rules allow this.

Correct. Some of institutional rules allow for such consolidation. See the element ‘Multiplicity’.

Question 79

An arbitration is commenced by a bank against an insurance company. The arbitration has its seat in England. The arbitration proceeds to a determination in favour of the claimant, and the claimant wishes to enforce payment of the award in England. The arbitration agreement is silent as to enforcement methods.

What enforcement methods are available to the claimant if takes the required steps?

The enforcement methods set out in the Arbitration Act 1996.

The only option is to petition for the winding-up of the insurance company.

No enforcement is possible.

The same methods as would be available for enforcement of a court judgment.

Answer 79

The same methods as would be available for enforcement of a court judgment.

Correct
Correct. After the necessary application to court is made, an arbitral award is enforceable in the same way as a court judgment. See the element relating to ‘Enforcement’ in the topic ‘Arbitration’.

Question 80

A distinctive feature of the Commercial Court is a date (fixed at the time of the CMC) for…

…for the service of final witness evidence.

…for checking readiness for trial and confirming compliance with directions.

…for the service of final statements of case.

Answer 80

…for checking readiness for trial and confirming compliance with directions.

Correct. Whilst many court procedures involve a pre-trial review and/or pre-trial checklist, the Commercial Court procedure also involves a ‘progress monitoring date’.

Question 81

When does the Defendant need to file an acknowledgement of service?

Within 14 days of service of the particulars of claim.

An acknowledgement of service is not required in the Commercial Court.

Within 14 days of service of the claim form.

Answer 81

Within 14 days of service of the claim form.

Correct
Correct. See CPR 58.6(1)-(2), Guide B9.1 and B9.4(a).

Question 82

In relation to interim applications, a designated judge is…

…a judge of the Business and Property Courts authorised to hear interim applications in the Commercial Court.

…the judge who will hear the application.

…a judge who will hear all applications and the trial.

Answer 82

…a judge who will hear all applications and the trial.

Correct
Correct. Well done.

Question 83

Which of the following DOES NOT have to be satisfied in order for the special rules outlined in this element to apply?

The document must be for use at trial (not an interim application).

The document must be a witness statement, not an affidavit.

The trial must be in the Business and Property Courts.

The document must be in excess of 5 pages long (or a judge has directed that the special rules apply).

Answer 83

The document must be in excess of 5 pages long (or a judge has directed that the special rules apply).

Correct
Correct. This criterion DOES NOT need to be satisfied. If the other three criteria are satisfied, then the special rules will apply – there is no need to have a judge direct this, and the length of the witness statement is irrelevant.

Question 84

As far as possible, a witness should only be shown documents if…

…the documents were first referred to by the witness in their own draft witness statement or in the interview(s) on which the witness’s statement is based.

…it is necessary for the witness to see them to prepare the witness statement.

…the witness created or saw the document while the facts in / supported by the document were still fresh in the witness’s mind.

…the witness authored them or the documents were authored under the control or direction of the witness.

Answer 84

…the witness created or saw the document while the facts in / supported by the document were still fresh in the witness’s mind.

Correct. Well done.

Question 85

Which of the following must legal representatives ensure are included in witness statements prepared in accordance with 57AC PD?

Confirmation of compliance, a certificate of compliance and a jurat.

Confirmation of compliance and a certificate of compliance.

A statement of truth, confirmation of compliance and certificate of compliance.

A statement of truth only.

Answer 85

A statement of truth, confirmation of compliance and certificate of compliance.

Correct. Well done.

Question 86

A witness has only a vague recollection of a telephone negotiation relating to entering into a new contract. The witness is in the process of preparing a witness statement. The witness searches on their computer and finds the emails exchanged immediately before the telephone negotiation (the ‘Emails’). These bring back to mind some of the topics discussed in the negotiation and the detail of those discussions. The witness sets out that detail in their witness statement. What is the witness required to do in relation to the Emails?

Exhibit the Emails to the witness statement in a paginated bundle and refer to those Emails at the appropriate place in the witness statement.

Provide copies of the Emails to the other party or parties.

Identify the Emails in the witness statement as documents referred to in preparing the witness statement.

Disclose the Emails via a supplementary disclosure statement.

Answer 86

Identify the Emails in the witness statement as documents referred to in preparing the witness statement.

Correct. See 57AC PD 3.2. In terms of the other answers: 1. Whether or not copies must be provided to the other party / parties depends on the usual rules of disclosure / inspection – listing the documents as required by 57AC PD 3.2 does not waive privilege. It is not necessary to exhibit them unless they have not been disclosed. A supplementary disclosure statement may be necessary, but it may not – the Emails might already have been disclosed.

Question 87

A witness statement is a written statement signed by a person which contains the evidence which…

…that person would be allowed to give orally.

…that person considers relevant to the issues in dispute as revealed by the statements of case.

…explains the factual matters known to the witness and the documents authored or originating from that witness.

…conflict with that contained in the documentary evidence.

Answer 87

…that person would be allowed to give orally.

Correct – CPR 32.4(1).

Question 88

A man considers that he has been wrongly refused Job Seekers’ Allowance (‘JSA’). He challenges this refusal before the appropriate tribunal in the Social Entitlement Chamber. The tribunal upholds the decision to refuse him the JSA. He is unhappy that determination, and wishes to appeal the tribunal’s decision.

To whom should any such appeal be pursued?

The High Court.

The Court of Appeal.

There is no route of appeal from this decision.

The Upper Tribunal.

Answer 88

The Upper Tribunal.

Correct
Correct. An appeal from a first-tier tribunal (of which the tribunals in the Social Entitlement Chamber are examples) lies to the Upper Tribunal. See the element ‘Tribunals and ombudspeople’.

Question 89

A claim is proceeding before the Commercial Court. The claim concerns a fire-safety inspection at a warehouse. The warehouse owner alleges that the inspection was carried out negligently by the inspector. Part of the inspection was witnessed by the Warehouse Manager and the Warehouse Assistant. Following the inspection, the inspector recorded his conclusions in a report – but neither Warehouse Manager nor Warehouse Assistant have seen this yet. A trial witness statement has already been obtained from the Warehouse Manager and you are meeting with the Warehouse Assistance to start the process of preparing her trial witness statement.

What would be an appropriate first question to ask / request to obtain the Warehouse Assistant’s evidence?

What about the inspector’s actions, if anything, caused you concern?

Please read the inspector’s report following the inspection. What is your recollection in relation to the matters set out in that witness statement?

Please read the draft witness statement of the Warehouse Manager. What is your recollection in relation to the matters set out in that witness statement?

Please tell me what you can remember about the fire-safety inspection.

Answer 89

Please tell me what you can remember about the fire-safety inspection.

Correct
Correct. See 57AC PD and/or the element ‘Trial witness statements in the Business and Property Courts’. The other answers are less good because “what about the inspector’s actions…caused you concern?” is a leading question. In relation to the other two options (referring to documents) it is better to limit the number of documents shown to a witness, in particular if those documents were not created or seen by the witness at the time that the matters set out in the document were fresh in the witness’s mind. Revisit 57AC PD and/or the element ‘Trial witness statements in the Business and Property Courts’.

Question 90

An engineering company is defending a negligence claim in the Commercial Court in relation to the servicing of a steel-working machine. In order to explain its conduct, the engineering company needs to explain detailed logs which record the performance of the machine at the relevant times. It is straightforward to explain what the logs show in general terms, but then the important figures in different logs need to be highlighted and the links between them shown to the court. This is a complex process. Without it, neither the court nor the opponent will understand the engineering company’s position. The claim is at the case management stage.

What is the best way for this information to be put before the court?

Set out the position in correspondence with the opponent which can then be filed at court / included in a trial bundle.

Serve a witness statement (at the time indicated in the court’s directions) from a witness familiar with the logs explaining this information.

Include this information in the skeleton argument filed in advance of trial.

Seek a direction for the engineering company to provide a narrative document explaining this.

Answer 90

Seek a direction for the engineering company to provide a narrative document explaining this.

Correct
Correct. This is the best approach. In terms of the other options: a witness statement should not be used to provide commentary on documents. Using a skeleton argument is possible, but it only provides the relevant explanation very late in the process, and this is rarely ideal. Correspondence is not an appropriate way to get evidence before the court. See the element relating to “Trial witness statements in the Business and Property Courts”.

Question 91

The “general prohibition” in relation to FSMA is best summarised as…

…a firm regulated by the FSA cannot engage in any non-regulated work.

…a firm regulated by the FSA cannot work in relation to specified activities and products unless specifically authorised to do so.

… a person / firm cannot carry out specified activities, relating to financial services, unless authorised or exempt.

…a person / firm cannot deal in relation to financial products unless the FSA has authorised them to do so.

Answer 91

Correct. Well done. See the slide relating to the ‘general prohibition’.

Question 92

Which one of the following is not one of the FCA’s strategic objectives?

Protecting and enhancing the integrity of the UK financial system.

Encouraging a diverse and accessible range of financial products.

Promoting effective competition in the interests of consumers in the markets.

Securing an appropriate degree of protection for consumers.

Answer 92

Encouraging a diverse and accessible range of financial products.

Correct. This IS NOT one of the FCA’s strategic objectives.

Question 93

Principle 11 requires notification to a regulator of…

…anything which is specified in the FCA Handbook.

…anything which jeopardises the integrity of the firm or the interests of customers.

…anything relating to the firm of which the regulator would reasonably expect notice.

…anything which could interfere with the FCA’s regulatory objectives.

Answer 93

…anything relating to the firm of which the regulator would reasonably expect notice.

Well done!

Question 94

A key difference between settlement negotiations with the FCA and those with an opponent in civil proceedings is…

…it is unlikely that it will be possible to alter any penalty which the FCA would otherwise impose.

…there will be no separation between the people negotiating and the people ultimately determining the dispute.

…it is unlikely to be possible to negotiate an entirely confidential / private settlement.

Answer 94

…it is unlikely to be possible to negotiate an entirely confidential / private settlement.

Correct
Correct. See the pages relating to settlement discussions.

Question 95

RDC notices

Answer 95

Warning Notice, s. 387
Details about action that the FCA proposes to take and about the right to make representations.

Decision Notice, s. 388
Gives reasons for the FCA’s decision to take enforcement action.

Final Notice, s. 390
If there is no appeal, this notice will be issued.

Supervisory Notice, s. 395(13)
Can take effect immediately. Generally requires the firm to do (or refrain from doing) a particular activity.

Notice of Discontinuance, s. 389
Brings the disciplinary proceedings to a formal conclusion, following receipt of the firm’s submissions

Question 96

publicity re Decision Notices and Final Notices

Answer 96

Usually published.

Correct
Correct. The FCA ‘must publish such information about the matter to which the notice relates as it considers appropriate’ - section 391(4) FSMA 2000 – and this is usually done by publishing the notice itself on the FCA website.

Question 97

S.413 FSMA 2000 provides protection in a regulatory context which is [ ? ] that provided by legal professional privilege in a civil litigation context.

substantially different to

markedly different to

incomparable to

very similar to

the same as

Answer 97

very similar to

correct

Question 98

A firm faces an investigation by the FCA. It provides a response (the ‘Response’) to initial enquiries by the FCA. Soon after that, it receives a letter of claim from a customer in relation to the subject matter which also gave rise to the FCA investigation. The firm fails to appease that customer and the customer issues a claim, which ultimately proceeds to standard disclosure, and the Response is duly disclosed.

When deciding whether the firm needs to allow the customer to inspect the Response, which of the following is/are applied?

S 413 FSMA 2000

The common law rules relating to legal professional privilege.

Answer 98

The common law rules relating to legal professional privilege.

Correct
Correct. The question is about inspection in relation to civil proceedings, so the common law rules of privilege apply, notwithstanding that the document relates to a regulatory matter.

Question 99

Which one of the following statements describes a “concerted practice”?

A formal co-operation.

A decision taken from a rule book of a trade association.

A formal commercial contract.

An informal co-operation.

An informal commercial contract.

Answer 99

An informal co-operation.

correct

Question 100

Which one of the following statements is NOT one of the criteria to be met to work out if there is prima facie a breach of the Chapter I Prohibition?

may affect trade within the UK

has as its object or effect the prevention, restriction or distortion of competition within the UK

dominance in the market

an agreement between undertakings, a decision by associations of undertakings or a concerted practice between undertakings

Answer 100

dominance in the market

Correct

Question 101

Which one of the following statements does not describe a type of anti-competitive behaviour which would fall under the Chapter I Prohibition?

directly or indirectly fix purchase or selling prices or any other trading conditions

limit or control production, markets, technical development or investment

apply similar conditions to equivalent transactions with other trading parties

make the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature, have no connection with the subject of the contracts

share markets or sources of supply

Answer 101

apply similar conditions to equivalent transactions with other trading parties

correct

Question 102

Which one of the following parties will most likely have the skills to establish the market in the context of the Chapter II Prohibition?

A CMA investigator

A solicitor

A director of the undertaking under investigation

A consumer of the products in question

An economist

Answer 102

An economist

Correct
Correct

Question 103

Which one of the following statements is correct in respect of market share in the context of the Chapter II Prohibition?

Market share of over 50% or below 40% offers very strong evidence of dominance or non-dominance respectively, but it does depend on all the factors

Market share of over 50% or below 50% offers very strong evidence of dominance or non-dominance respectively, but it does depend on all the factors

Market share of over 50% or below 40% demonstrates clearly dominance or non-dominance respectively.

The market share of a given undertaking’s market share percentage is always determinative of dominance.

Market share of 40-45% will never be deemed to be dominant.

Answer 103

Market share of over 50% or below 40% offers very strong evidence of dominance or non-dominance respectively, but it does depend on all the factors

Correct

Question 104

Which one of the following statements correctly describes the role of abusive conduct in the context of the Chapter II prohibition?

Only when a party takes steps that constitute an abuse of its position is it in breach of s18 CA.

There is a very narrow of behaviour that constitutes abuse within s2 CA.

There is a very narrow of behaviour that constitutes abuse within s18 CA.

Action is taken against a party when it has a large market share.

Action is taken against a party simply because it is in a dominant position.

Answer 104

Only when a party takes steps that constitute an abuse of its position is it in breach of s18 CA.

Correct

Question 105

The FCA has commenced an investigation in relation to the conduct of a bank following some reckless trades by one of the bank’s employees. The FCA’s investigation has not yet reached the enforcement stage. The bank has a copy of the trader’s annual appraisal in which the appraiser notes a reckless and risky approach to trades in discussion with the trader. This appraisal is confidential. The FCA’s investigation has not yet reached the enforcement stage.

Assuming that the appraisal is highly relevant to the matter being investigated by the FCA, can the appraisal be withheld from disclosure / production to the FCA if the FCA requests to see it?

Yes, because the investigation has not yet reached the enforcement stage.

No, because there are no grounds for refusing disclosure / production to the FCA.

Yes, because there is a statutory basis for withholding the document.

Yes, because the document is privileged at common law.

Answer 105

No, because there are no grounds for refusing disclosure / production to the FCA.

Correct. The FCA is entitled to request this document. S.413, which explains which items are ‘protected’ from production, does not cover the appraisal. Common law privilege is not relevant. The FCA can ask for documents at any stage, including before the enforcement stage. See the elements ‘FCA investigation, enforcement and appeal’ and ‘Disclosure and FCA investigations’.

Question 106

The FCA has been investigating the conduct of a firm of insurance brokers. After the required investigation and subsequent enforcement processes, it serves a Decision Notice on the firm indicating a substantial penalty.

Is it likely that information concerning these enforcement proceedings will be made public?

No, because the subject matter of the enforcement action is confidential.

Yes, because an investigation has taken place.

No, because there is no public interest in information about these enforcement proceedings being made public.

Yes, because a Decision Notice has been issued.

Answer 106

Yes, because a Decision Notice has been issued.

Correct. The fact of an investigation will not normally be publicised, but if there is a Decision Notice or a Final Notice (as here), the FCA has a statutory duty under s. 391 FSMA 2000 to publish such information about the matter as it considers appropriate and in such manner as it considers appropriate unless publication would, in the FCA’s opinion, be unfair to that person, prejudicial to consumers’ interests or detrimental to the stability of the UK financial system (see s. 391 (4) and (6)). None of those exceptions appear to apply here. It is not the case that publication only occurs if a public interest is positively established. The fact that the subject matter of the enforcement action is confidential does not prevent publicity altogether, although it may have an impact on the details of what is published. See the element ‘FCA investigation, enforcement and appeal’ and / or s.391 FSMA 2000.

incorrect
No, because there is no public interest in information about these enforcement proceedings being made public.

Incorrect. It is not the case that publication only occurs if a public interest is positively established. See the element ‘FCA investigation, enforcement and appeal’ and / or s.391 FSMA 2000.

No, because the subject matter of the enforcement action is confidential.

Incorrect
Incorrect. The fact that the subject matter of the enforcement action is confidential does not prevent publicity altogether, although it may have an impact on the details of what is published. See the element ‘FCA investigation, enforcement and appeal’ and / or s.391 FSMA 2000.

Question 107

A financial services firm discovers that one of its employees has been stealing money from various clients’ accounts. The firm carries out an investigation, identifies the accounts effected, reimburses the clients and dismisses the employee concerned.

Is the firm required to notify the regulator of this matter?

No, because this matter does not jeopardise the integrity of the financial services firm nor of the markets generally.

Yes, because this assist the FCA in achieving the FCA’s regulatory objectives

No, because clients have suffered no loss.

Yes, because it is something of which the regulator would reasonably expect notice.

Answer 107

Yes, because it is something of which the regulator would reasonably expect notice.

Correct. Principle 11 of the FCA Principles for Businesses requires a firm to deal with its regulators in an open and co-operative way. On this basis, firms must disclose to their regulators anything relating to the firm of which the regulators would reasonably expect notice, which would include a problem like this. It may assist the FCA to achieve its objectives to report this, but that is not the key test from the firm’s perspective. The fact that clients have (ultimately) suffered no loss is not determinative. The fact that this matter does not jeopardise the integrity of the financial services firm nor of the markets generally is not determinative. See Principle 11 of the FCA Principles for Businesses and/or the element ‘Introduction to financial services regulation in the UK.

Question 108

A company is facing an investigation by the CMA. The CMA provides a Statement of Objections alleging an anti-competitive agreement. In order to defend its position against the CMA, the company obtains expert accountancy evidence (the Evidence). The Evidence is not helpful to its position, and the company decides not to reveal it to the CMA. The CMA imposes a penalty on the company. The company subsequently faces a civil claim (in the High Court) from an industry competitor. The Evidence falls within the scope of the disclosure order made by the court.

Is the competitor entitled to inspect the Evidence?

No, because the document attracts litigation privilege.

No, because the document attracts legal advice privilege.

Yes, because the document was prepared in contemplation of the CMA investigation, not court proceedings.

Yes, because the Competition Act 1998 provides protection from disclosure / production to the CMA, not protection from inspection in court proceedings.

Answer 108

No, because the document attracts litigation privilege.

Correct. The document was prepared in contemplation of the CMA investigation. Because the CMA investigation had reached the ‘statement of objections’ stage, it is treated as sufficiently similar to litigation for litigation privilege to apply when inspection is sought in court proceedings. The document does not attract legal advice privilege. It is true that the document was prepared in contemplation of the CMA investigation, not court proceedings. However, this does not necessarily mean it is not privileged in court proceedings. See the element ‘An introduction to the Competition and Markets Authority’.

Question 109

The CMA is investigating the alleged abuse of a dominant position by a pharmaceutical company by an unfair pricing structure. The CMA asks the company to provide a copy of the legal advice it received before implementing that pricing structure. That advice is prejudicial to the company’s position in the investigation.

Can the CMA require the company to produce the advice?

Yes, because the CMA has a broad power to require the production of documents.

Yes, because the advice is relevant to the issues being investigated by the CMA.

No, because this would be prejudicial to the company’s position in the investigation.

No, because the advice would attract legal advice privilege in High Court proceedings.

Answer 109

No, because the advice would attract legal advice privilege in High Court proceedings.

Correct
Correct. The CMA has a broad power to require the production of documents. However, it cannot require production of documents that would privilege in High Court proceedings. See the element ‘An introduction to the Competition and Markets Authority’.

Question 110

The CMA is investigating an alleged anti-competitive agreement between 3 leading car manufacturers. It suspects that evidence of the infringement is being stored at the home of one of the infringing companies’ directors. It wishes to search those premises for that evidence.

Can the CMA search those premises?

No, because the premises are domestic premises.

Yes, under a warrant.

Yes (even without a warrant).

No, because there is no statutory basis for a search.

Answer 110

Yes, under a warrant.

Correct. S.28A Competition Act 1998 gives the CMA the power to search domestic premises under a warrant. See the element ‘An introduction to the Competition and Markets Authority’.

Question 111

Common interest privilege is a doctrine…

… which provides that the consent of all parties with an interest in a document is needed before privilege can be waived.

… which allows a document to be shared with a party with a common interest, without an existing privilege being lost.

… which protects communications between two parties with a common interest in litigation from disclosure / inspection.

Answer 111

… which allows a document to be shared with a party with a common interest, without an existing privilege being lost.

Correct. Well done.

Question 112

The doctrine of ‘limited waiver’ is broader than that of common interest privilege because…

the recipient of the document need not have a common interest with the original party.

it applies without there being any requirement of confidentiality.

Answer 112

the recipient of the document need not have a common interest with the original party.

Correct. Well done.

Question 113

You act for John Donne, a collector of rare books, in relation to a claim in negligence against Authentic Editions Limited (“Authentic”). The claim arises out of John Donne’s purchase of what he believed to be a handwritten manuscript of a classic 17th century novel by the French author Emille Voltaire. John Donne purchased the manuscript through a well known English auction house, Mason & Browne (“MB”). Prior to putting the manuscript up for auction, MB had taken the manuscript to Authentic for the purpose of putting a value on it and to verify its authenticity. John Donne tells you the decision to buy the manuscript and at the price indicated was based solely in reliance on MB’s authentication of it. To assist in the verification of the manuscript, Authentic had spoken to an eminent French Literary historian, Gaston Zola, who John Donne believes had expressed doubts in relation to the authenticity of the manuscript to Authentic. The case proceeds to standard disclosure and Authentic, whilst admitting the existence of the correspondence with Gaston Zola, which is in French, have not included the correspondence on its list of documents. Authentic maintains that the correspondence is not disclosable or inspectable.

Which of the following statements is/are TRUE?

i) The correspondence from Gaston Zola to Authentic is, on the facts, likely to be disclosable and open to inspection. However, Authentic is not obliged to obtain and provide English translations of the correspondence in question.

(ii) The correspondence from Gaston Zola to Authentic is likely to be disclosable and open to inspection. Authentic are obliged to obtain and provide English translations of Gaston’s correspondence and to disclose those translations in addition to the French originals.

(iii) The correspondence from Gaston Zola to Authentic is, on the facts, likely to be disclosable and open to inspection. Authentic are not obliged to obtain and provide English translations, and, in any event, such translations would be privileged and not therefore open to inspection.

(iv) The correspondence from Gaston Zola to Authentic is, on the facts, likely to be disclosable and open to inspection. If Authentic have had the correspondence with Gaston Zola translated into English then it is likely to be required to allow inspection of those English translations.

Only statements (i) and (iii) are true

Only statements (ii), (iii) and (iv) are true

Only (i) and (iv) are true

Only statements (i),(iii) and (iv) are true

Answer 113

Only (i) and (iv) are true

Well done. The correspondence is likely to be disclosable and open to inspection. Neither party is obliged to make a translation, but if they have made a translation then they are likely need to permit inspection of the translation. See the part of this element relating to translations / Sumitomo.