Commencing and responding to a claim

Question 1

A claimant is bringing a claim against a defendant company, seeking damages for personal injury. The claim arises from an accident at work and there are complex liability issues. The claimant values the claim at £75,000. The claimant’s solicitor prepares to issue the claim in the High Court.

Is the claimant’s solicitor correct to prepare the claim for issue in the High Court?

A-Yes, because personal injury claims must be issued in the High Court.

B-Yes, because the claim is worth over £50,000 and there are complex issues.

C-No, because the claim is worth less than £100,000 so cannot be issued in the High Court.

D-No, because this is a claim for money only.

E-Yes, because the claim is brought against a defendant company.

Answer 1

Option B is correct because personal injury claims worth over £50,000 may be started in the High Court. Complexity is a factor which suggests the High Court is appropriate.

Option A is wrong because personal injury claims may be started in either level of court, depending on value.

Option C is wrong because this is a personal injury claim and the threshold to issue in the High Court is £50,000 rather than £100,000 as for other types of claim.

Option D is wrong because money claims may be started in the High Court.

Option E is wrong because the identity of the defendant does not dictate the level of court in which a claim should be issued.

Question 2

A man expects to recover damages of £150,000 in a personal injury claim on a full liability basis. However, he would accept contributory negligence at 10 percent. Interest on the claim to the date of issue of his claim form amounts to £1,290 and at that date his legal costs are £7,545.

Which of the following correctly describes how the statement of value should be completed in the claim form?

A-The claimant expects to recover more than £100,000.

B-The claimant expects to recover £157,545.

C-The claimant expects to recover £151,290.

D-The claimant expects to recover £150,000.

E-The claimant expects to recover £135,000.

Answer 2

Option A is correct and therefore all the other options are wrong. Why? When calculating how much the claimant expects to recover, the claimant must disregard that the court may make an award of interest or costs or make a finding of contributory negligence.

The man expects to recover damages of £150,000 (option D). That he would accept contributory negligence at 10 percent reducing the claim to £135,000 (£150,000 x 10% = £15,000) (option E) is irrelevant. That interest on the claim to the date of issue of her claim form amounts to £1,290 (£150,000 plus £1,290) (option C) is irrelevant. That at that date her legal costs are £7,545 (£150,000 plus £7,545) (option B) is irrelevant. Therefore, these proceedings will be issued in the High Court and the required statement of value is that provided for in option A.

Question 3

The claimant issued a claim with particulars of claim to follow and served the claim form two months later. The claimant then served the particulars of claim, which were deemed served 10 days after the claim form was served

Has the claimant served the claim form and the particulars of claim in time?

A-No, because the claim form must be served within 14 days of being issued.

B-No, because the particulars must be served within seven days of the claim form being served.

C-No, because the claim form and particulars must be served at the same time.

D-Yes, because the claim form was served within four months of issue, and the particulars were served within 14 days of the claim form.

E-Yes, because the claim form was served within three months of issue, and the particulars were served within 14 days of the claim form.

Answer 3

Option D is correct because the claim form must be served on the defendant within four months of issue, and the particulars of claim must be (deemed) served within 14 days of service of the claim form (but no later than four months after the date of issue of the claim form, which is satisfied on these facts).

Option A is wrong because the claim form must be served within four months of being issued.

Option B is wrong because the particulars of claim must be served within 14 days of the claim form being served.

Option C is wrong because the claim form and particulars of claim may be served separately.

Option E is wrong because the claimant has four months in which to serve the claim form, rather than three.

Question 4

A company entered into a written contract with a firm of plumbers on 7 February. The contract required the firm to renew all the plumbing in the company’s offices for an agreed sum of £56,700. The firm failed to carry out the works properly causing the company’s offices to flood on 27 May. The cost of repairing the offices and the company’s loss of profits was £212,450.

Which of the following best describes how the brief details of claim should be completed in the claim form?

A-The defendant breached its duty of care to act as a firm of reasonably competent plumbers. The clamant claims damages arising from the defendant’s negligence of £212,450 being the cost of repairing the offices and the company’s loss of profits.

B-In breach of a written contract made between the parties on 7 February [last year] the defendant failed to exercise reasonable care and skill when renewing the plumbing in the claimant’s offices. The defendant caused the claimant’s offices to flood on 27 May. The clamant claims damages of £212,450 being the cost of repairing the offices and the company’s loss of profits.

C-The claimant’s offices were damaged by a flood caused by the defendant’s breach of their written contract. The clamant claims damages.

D-The claimant’s offices were damaged by a flood caused by the defendant’s negligence. The clamant claims £212,450.

E-The claimant’s cause of action is breach of contract. The remedy sought is damages. The award of damages should place the claimant in the same position as if the contract had been performed by the defendant.

Answer 4

Option B best describes how the brief details of claim should be completed in the claim form. The brief details must be a concise statement of the nature of the claim and specify the remedy which the claimant seeks. Here the nature of the claim is breach of a written contract made between the parties on 7 February. The breach was the defendant’s failure to exercise reasonable care and skill (a term implied into the contract by s 13 of the Supply of Goods and Services Act 1982) when renewing the plumbing in the claimant’s offices. The defendant caused the claimant’s offices to flood on 27 May. The remedy claimed is damages of £212,450 being the cost of repairing the offices and the company’s loss of profits.

Option A is not the best answer. It could be alleged that the defendant breached its duty of care to act as a firm of reasonably competent plumbers. However, the brief details should at least identify how the duty of care arose and was broken. The remedy is stated. See the feedback to the correct option B.

Option C is not the best answer. It is factually correct that the claim is based on the allegation that claimant’s offices were damaged by a flood caused by the defendant’s breach of contract. However, the brief details must be a concise statement of the nature of this claim and specify the remedy which this claimant is seeking. The brief details are therefore facts establishing this claim and remedy sought. Those facts are missing here. See the feedback to the correct option B.

Option D is not the best answer. It could be alleged that the claimant’s offices were damaged by a flood caused by the defendant’s negligence. So, the cause of action could be based on negligence rather than breach of contract. But in those circumstances, the brief details should at least identify how the duty of care arose and was broken. The clamant claims £212,450 but the factual details are missing. See the feedback to the correct option B.

Option E is wrong. The brief details must be a concise statement of the nature of this claim and specify the remedy which this claimant is seeking. The brief details are therefore facts establishing this claim and the remedy sought. No facts are stated here. The brief details of claim must not be general principles of law as set out here. See the feedback to the correct option B.

Question 5

A woman is served with a claim form, particulars of claim and a response pack whilst attending a business conference in Cardiff, Wales.

The woman lives in the United States of America. She wishes to dispute the court’s jurisdiction to try the claim.

What advice should the woman be given?

A-The woman must file an acknowledgment of service within 14 days of service of the claim form

B-The woman cannot dispute the court’s jurisdiction to try the claim as she was served with the proceedings in the jurisdiction of England and Wales.

C-The woman must file an acknowledgment of service within 14 days of service of the claim form and a defence within 28 days of service of the claim form. She must then apply promptly to the court for an order declaring that it has no jurisdiction to try the claim.

D-The woman must make an application to the court for an order declaring that it has no jurisdiction to try the claim within 14 days of service of the claim form.

E-The woman must file a defence within 14 days of service of the claim form otherwise she will lose any right that she has to dispute the court’s jurisdiction.

Answer 5

Option A is the best answer. This is the advice that the woman should be given. The acknowledgment must be filed before the application is made. There is a box on the acknowledgment form that the woman can tick to indicate that she intends to contest the jurisdiction.

Option B is wrong. It is not advice that she should be given. A defendant can dispute the court’s jurisdiction to try the claim regardless of whether they are served in or outside the jurisdiction. See the feedback to the correct option A.

Option C is wrong. It is not advice that she should be given. The acknowledgment must be filed and an application made within 14 days of doing so. Filing a defence will be treated as accepting the court’s jurisdiction. See the feedback to the correct option A.

Option D is wrong. It is not advice that she should be given. An acknowledgment must be filed before the application is made. See the feedback to the correct option A.

Option E is wrong. It is not advice that she should be given. Filing a defence will be treated as accepting the court’s jurisdiction. See the feedback to the correct option A.

Question 6

A woman issues proceedings against her insurance company for failing to pay her medical expenses under the policy that she took out with the company. The particulars of claim are deemed served on the company on Tuesday 1 December. The company denies the claim.

What advice should the company be given?

A-The company must serve its defence by 15 December.

B-The company must either file an acknowledgment of service or serve its defence by 29 December.

C-If the company fails to respond to the proceedings, the first date on which the woman could apply for judgment in default is 16 December.

D-If the company files an acknowledgment of service on 8 December it will have until 22 December to file its defence.

E-If the company is not ready to file its defence, the company must apply to the court for an extension of time to do so.

Answer 6

Option C is the best answer. By way of information, CPR r 10.3(1)(a) provides that the general rule is that the period for filing an acknowledgment of service is 14 days after service of the particulars of claim. Rule 15.4(1) provides that the general rule is that the period for filing a defence is (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim. So, if the defendant neither files an acknowledgment of service nor serves a defence, the claimant can enter default judgment on the 15th day after deemed service of the particulars of claim. On these facts, the company must either file its acknowledgment of service or serve its defence by 15 December, otherwise the claimant can enter default judgment on 16 December. If the company files its acknowledgment by 15 December, it will then have until 29 December to serve its defence.

Option A is wrong. The company must either file its acknowledgment of service or serve its defence by 15 December. See the feedback to the correct option C.

Option B is wrong. The company must either file an acknowledgment of service or serve its defence by 15 December, otherwise the claimant can enter default judgment on 16 December. See the feedback to the correct option C.

Option D is wrong. If the company files an acknowledgment of service on 8 December it will have until 29 December to file its defence. See the feedback to the correct option C.

Option E is wrong. If the company is not ready to file its defence, the first thing it can do is to file an acknowledgment of service by 15 December. If the company does that, it will then have until 29 December to serve its defence. If the company still needed more time, it could seek the claimant’s agreement to a maximum extension of 28 days. By way of information, note that CPR, r 15.5 provides that the defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days. Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing. Failing such an agreement or if further time was needed, then the defendant would have to apply to the court. See the feedback to the correct option C.

Question 7

A man bought a house two years ago. He has started court proceedings against his surveyor alleging that she negligently failed to report on the defective construction of the house.

Today, the surveyor has acknowledged service of proceedings and indicated her intention to defend the proceedings.

Today, the surveyor has also been informed by her insurance company that the man’s claim is not covered by the terms of her policy. The surveyor has been informed that this is arguably wrong.

What step should the surveyor be advised take next?

A-File and serve her defence to the man’s negligence claim.

B-Apply to the court for permission to amend the claim to add her insurance company as a defendant.

C-Issue a claim form against her insurance company for breach of contract.

D-Issue a Part 20 claim for an indemnity against her insurance company.

E-Issue a Part 20 claim for a contribution against her insurance company.

Answer 7

Option D is the best answer. The risk the surveyor runs is that the claim proceeds to trial and the court finds in the man’s favour. The surveyor would then have to pay the man the damages awarded by the court. The court’s determination that the surveyor was negligent will not be binding on her insurance company, nor will the court have determined whether or not the negligence is covered by the policy. So, in order to avoid this risk, the surveyor should make a Part 20 claim against her insurance company for an indemnity in respect of any sums that she is ordered to pay to the man.

Option A is the second-best answer. The Part 20 indemnity claim, referred to in the feedback to option D, can be made without the court’s permission provided it is issued before, or at the same time as, the defence to the man’s claim is filed. That saves the surveyor the expense of applying for permission. Filing the defence within the required time period will prevent the man entering default judgment.

Option B is not the best answer. The court will not grant permission to amend the claim to add the surveyor’s insurance company as a defendant because the man has no cause of action against the insurance company. It is the surveyor who has a cause of action against her insurance company for breach of insurance contract and that is the basis of the surveyor’s Part 20 indemnity claim against her insurance company (as detailed in the feedback to option D).

Option C is not the best answer. The benefits of making a Part 20 indemnity claim are described in the feedback to option D.

Option E is not the best answer. The surveyor wants a full indemnity against having to pay damages to the man (see the feedback to option D) and not just a contribution.

Part 20 explanation: If the defendant to a claim alleges that a third party is liable to indemnify him or contribute to any judgment, or is someone that they seek to counterclaim against in addition to the claimant, he must bring that party into the proceedings by issuing a Part 20 claim form.

Indemnity meaning:s security or protection against a financial liability

Question 8

A claimant starts proceedings. The claim form is served on the defendant. It includes, for the purposes of service, the postal address and email address of the claimant’s solicitor.

The claimant subsequently serves the particulars of claim using first class post. The particulars of claim are put in the post on Thursday. The defendant acknowledges service four days after deemed service of the particulars of claim.

The defendant serves its defence by email sent to the claimant’s solicitor at 4.15pm on Tuesday, 18 days after deemed service of the particulars of claim. The defence states that the defendant’s solicitor is authorised to accept service of proceedings on behalf of the defendant.

The claimant subsequently serves a reply to the defence.

Which of the following best describes the service of these statements of case?

A-The reply to the defence should have been served on the defendant.

B-The particulars of claim will be deemed to be served on the second day after it was posted.

C-The defendant had 14 days from the date of deemed service of the particulars of claim to serve its defence.

D-The defendant did not serve the defence in time so judgment in default could have been entered by the claimant.

E-The defence is deemed to be served on the date the email was sent, provided that was a business day.

Answer 8

Option E is the best answer. By way of information, CPR, r 6.26 provides that if the e-mail (or other electronic transmission) is sent on a business day before 4.30p.m., the document, here the defence, is deemed to be served on that day; but, in any other case, it is deemed to be served on the next business day after the day on which it was sent.

Option A is wrong. The defence confirmed in writing that the defendant’s solicitor was authorised to accept service of proceedings on behalf of the defendant. Therefore, the reply should have been served on the defendant’s solicitor.

Option B is wrong. The particulars of claim will be deemed served on the second day after it was posted but only if that day is a business day. The second day after posting here on a Thursday is not a business day because it is a Saturday.

Option C is wrong. The defendant had 14 days from the date of deemed service of the particulars of claim to serve either its acknowledgment of service or its defence. Note that on the facts here, an acknowledgment was served.

Option D is wrong. The defendant did serve its defence in time. The defendant had 14 days from the date of deemed service of the particulars of claim to serve its acknowledgment of service and did so. The defendant acknowledged service four days after deemed service of the particulars of claim. That meant the defendant had 28 days from the date of deemed service of the particulars of claim to serve its defence and did so. The defendant served its defence by email sent to the claimant’s solicitor at 4.15pm on Tuesday, 18 days after deemed service of the particulars of claim. By way of information, CPR r 15.4(1) provides that the general rule is that the period for filing a defence is (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

Question 9

A local company expects to recover damages of £160,000 in a breach of contract claim against a local firm of financial advisers. The claim is denied. The firm also alleges that the company failed to mitigate half of its losses. This is denied by the firm. The legal and factual issues in the case are straightforward.

Can the company issue proceedings in the High Court?

A-Yes, because the High Court will ignore the issue of mitigation of loss when deciding whether or not to accept jurisdiction.

B-Yes, because a specialist court of the High Court will be required to deal with the claim.

C-Yes, because the High Court has unlimited jurisdiction.

D-No, because the amount of damages that the company expects to recover is too low.

E-No, because all non-personal injury claims under £50,000 must be commenced in the County Court Money Claims Centre.

Answer 9

Option A is the best answer. In order to issue proceedings in the High Court in a non-personal injuries claim, the value of the claim must be £100,000 or more. The value of the company’s claim is £160,000. Only if the company had admitted that it failed to mitigate half of its losses would the value of the claim fall to £80,000 meaning it would have to be issued in the County Court.

Option B is not the best answer. It is correct that the company may issue proceedings in the High Court. However, the reason given is wrong. Specialist courts of the High Court deal with complex national and international cases. Here, both parties are based locally and the legal and factual issues in the case are straightforward.

Option C is not the best answer. It is correct that the company may issue proceedings in the High Court. However, the reason given is wrong. Only if the value of a non-personal injury claim exceeds £100,000 or the value of a personal injury claim exceeds £50,000 does a claimant have a choice of issuing in the High Court (or otherwise the County Court).

Option D is wrong. See the feedback to the correct option A.

Option E is wrong. Personal injury claims under £50,000 must be commenced in the County Court Money Claims Centre. See the feedback to the correct option A.

Question 10

A child is seriously injured whilst at school. The child’s claim for personal injuries is estimated at £85,000. The claim raises no complex issues of law or facts.

What advice should be given to the child’s litigation friend about issuing proceedings?

A-As the value of the claim exceeds £50,000 the proceedings may be started in the High Court, Queen’s Bench Division or the County Court Money Claims Centre.

B-As the claimant is a child, the proceedings must be started in the High Court, Queen’s Bench Division.

C-As the claimant is a child, the proceedings must be started in the Family Division of the High Court.

D-As no complex issues of law and fact arise in the case, the proceedings must be started in the County Court.

E-As the value of the claim is less than £100,000 the proceedings must be started in the County Court Money Claims Centre.

Answer 10

Option A is the best answer. For a claim for personal injuries to be issued in the High Court the claimant must expect to recover £50,000 or more. Here the child’s claim for personal injuries is estimated at £85,000.

Option B is not the best answer. Personal injury proceedings concerning children can usually be dealt with by the County Court or the High Court, Queen’s Bench Division.

Option C is wrong. The Family Division of the High Court deals with family disputes such as defended divorces and adoption.

Option D is wrong. There is a choice of courts. See the feedback to the correct option A.

Option E is wrong. There is a choice of courts. See the feedback to the correct option A.

Question 11

It is Wednesday, 3 October. A defendant had just received a claim form and Particulars of Claim, sent by first class post under cover of a letter dated Monday, 1 October. The defendant intends to defend the claim. However, in order to do so, it needs to speak to a senior employee who is currently on annual leave. The employee is due to return to work on Monday, 22 October. The defendant believes that it will be able to finalise the defence within two days of the employee’s return.

What should the defendant do now?

A-The defendant should file a defence by 17 October.

B-The defendant should write to the claimant to request more time.

C-The defendant should file an acknowledgement of service.

D-The defendant need not do anything until the employee returns.

E-The defendant should apply to the court for more time.

Answer 11

Option C is correct. The defendant must either:

file a defence within 14 days of deemed service of the Particulars of Claim, ie by 17 October; or if it cannot file a defence within that time period
file an acknowledgement of service within 14 days of deemed service of the claim form (which, in this case, is also by 17 October).
If the defendant does the latter, it will then have 28 days from deemed service of the Particulars of Claim to file its defence. Assuming that nothing changes, this should give the defendant sufficient time to finalise its defence once its senior employee comes back from annual leave.

Option A is not the best answer on the facts. The defendant has the option to file an acknowledgment of service to buy itself extra time to finalise its defence.

Option B is not the best answer on the facts. The defendant should be able to finalise the defence before the end of October. So long as it files an acknowledgment of service, it does not need to ask the claimant for more time.

Option D is wrong. If the defendant has failed to file either an acknowledgment of service or defence by 17 October, the claimant will be entitled to enter default judgment against it.

Option E is wrong. There is no need at this stage to apply to the court for extra time (that would only become necessary if finalising the defence was considerably delayed).

Question 12

An English company entered into a contract for the supply of specialist factory equipment by a company registered in Canada. The office equipment was delivered but has proven defective. The English company notified the Canadian company of the defects and offered to fly directors of the Canadian company to England to resolve the matter, but the directors refused and there has since been no communication between the parties.

The English company wishes to commence proceedings before the English courts. The contract contains the following clause:

“This contract shall be governed by English law.”

Which of the following best describes whether permission is required to serve English proceedings overseas on the Canadian company?

A-Which of the following best describes whether permission is required to serve English proceedings overseas on the Canadian company?

B-As the claim is based on a contract governed by English law, the permission of the court to serve the proceedings overseas is not required.

C-As the defendant is based outside England, the court must refuse permission to serve the proceedings overseas.

D-As the claim is based on a contract governed by English law, the permission of the court to serve the proceedings overseas is required.

E-As the defendant is based outside England, proceedings cannot be served until such time as a director of the Canadian company is in England.

Answer 12

Option D is correct. As the defendant is based outside the EU, the permission of the court is required before proceedings can be served. The court may grant permission where the claim is based on a contract that is governed by English law. (The claimant must also set out that the claim has a reasonable prospect of success and why England is the proper place to hear the claim.) As the court’s permission is required, option B is wrong.

Option A is wrong. Just because the claimant is based in England is insufficient by itself to persuade the court to grant permission to serve proceedings overseas.

Option C is wrong. It is possible in certain situations to serve proceedings against a defendant based overseas (for instance where, as here, the contract on which the claim is based is governed by English law).

Option E does not represent the best advice. It is possible in theory to commence proceedings in England and then wait to see if a senior representative of the defendant company travels to England so that proceedings can be served on them. This would not require the permission of the court. However, given that the claimant is no longer in contact with the defendant, it may have no knowledge of when (or if) a director of the Canadian company might travel to England. Waiting for this to happen is therefore a risky way of proceeding.

Question 13

A defendant in a breach of contract claim is served with the claim form and particulars of claim by the claimant. The deemed date of service is the 1 June this year.

What is the date by when the defendant must respond to the claim form and particulars of claim?

A-The defendant has 28 days from date of deemed service, so he must respond by 29 June XX.

B-The defendant has 14 days from date of deemed service (to include day of deemed service), so he must respond by 14 June XX.

C-The defendant has 7 days from date of deemed service, so he must respond by 8 June XX.

D-The defendant has 14 days from date of deemed service (not including the day of deemed service), so he must respond by 15 June XX.

E-The defendant has 10 days from date of deemed service, so he must respond by 11 June XX.

Answer 13

Option D is the correct answer. An Acknowledgement of service has not been filed, and therefore the defendant has 14 days (not including the day of deemed service) to respond.

Option A is wrong because, an Acknowledgement of Service has not been filed, so the time frame has not been extended to 28 days in this instance.

Option B is wrong because, in calculating the 14 days the day of deemed service is not included.

Options C and E are wrong because, the CPR allows 14 days from day of deemed service for a response by the defendant, not 7 days.

Question 14

A claimant has issued proceedings against an individual defendant. The claimant has sought to find out where the defendant lives or works, but without success. Prior to issuing proceedings, the claimant communicated with the defendant on a daily basis over email. Although the email account appeared to belong to the defendant’s girlfriend, the defendant told the claimant that he used his girlfriend’s email and looked at it every day. The defendant is not legally represented.

Which of the following best describes whether the claimant can serve proceedings on the defendant via this email address?

A-Email is an authorised means of electronic communication permitted under the Civil Procedure Rules. The claimant can therefore serve proceedings this way without the permission of the court.

B-Proceedings cannot be served on the defendant by any method until such time as the defendant secures legal representation.

C-As the email account is in the name of the defendant’s girlfriend, the claimant cannot serve proceedings in this way.

D-As the defendant has not advised in writing that he will accept service of proceedings by email, the claimant cannot serve proceedings in this way.

E-The claim should seek the court’s permission to serve proceedings by this email address. There is evidence to suggest that the proceedings are likely to reach the defendant.

Answer 14

Option E is correct. The defendant has not indicated in writing that he is willing to accept service by email (which is ordinarily required before such service can be validly effected). In order to serve the claim form by email, the claimant will need to apply to the court for an order permitting it to serve by an alternative method. As part of this application, the claimant will need to demonstrate that the claim form will likely reach the defendant. Given the facts, the claimant should be able to demonstrate this.

Option A is wrong. The Civil Procedure Rules ordinarily only allow claim forms to be served by email where the defendant (or its legal representative) has previously indicated in writing that it will accept service in this way. There is nothing to suggest that this has happened.

Option B is wrong. It is permissible to serve legal proceedings on unrepresented defendants (although, as a matter of practice, greater care must be taken when doing so).

Option C is wrong. The fact that the account is in the name of the defendant’s girlfriend does not preclude the court from granting permission to serve proceedings this way (although this may be taken into account by the court when deciding whether to grant permission for service by an alternative method).

Option D is not the best answer. While it is correct that the defendant has not previously indicated in writing that he will accept service by email (such that email is not a method of service automatically permitted by the Civil Procedure Rules), the court may grant permission to serve the claim form via email as an alternative method of service.

Question 15

A claimant wants to issue proceedings for a breach of contract claim arising from the provision of goods that were not of satisfactory quality. This caused the claimant to suffer losses of £64,000 being the price of the goods and £32,000 loss of profits. The defendant is an individual who trades under a business name. The defendant has failed to respond to any correspondence from the claimant. When the contract was negotiated, the defendant instructed solicitors to act on their behalf.

Which statement describes the best way in which the claimant should issue proceedings?

A-In the County Court against the defendant in their personal name only, with the address for service being that of the defendant.

B-In the County Court against the defendant in their business name only, with the address for service being that of the solicitors.

C-In the High Court against the defendant in their individual and business names, with the address for service being that of the defendant.

D-In the High Court against the defendant in their individual and business names, with the address for service being that of the defendant.

E-In the High Court against the defendant in their business name only, with the address for service being that of the solicitors.

Answer 15

Option C is correct. The claim must be issued in the County Court as the value of the losses claimed is £96,000, so less than £100,000 which is required for High Court proceedings. Both options D and E are wrong for this reason.

The defendant should be sued in their full unabbreviated name together with their full trading name. For this reason, options A, B and E are wrong. Options B and E are also wrong because the defendant has not confirmed that their lawyers are instructed to accept service of court proceedings on their behalf.

Question 16

A claim form is served by first class post on Friday 9 April. The particulars of claim is delivered to a permitted address at 5pm on the following Thursday 15 April. The next day is Good Friday and the Monday 19 April is also a bank holiday, being Easter Monday.

Which of the following statements gives the correct days of deemed service?

A-The claim form is deemed served on Monday 12 April; the particulars of claim is deemed served on Thursday 15 April.

B-The claim form is deemed served on Monday 12 April; the particulars of claim is deemed served on Tuesday 20 April.

C-The claim form is deemed served on Tuesday 13 April; the particulars of claim is deemed served on Tuesday 20 April.

D-The claim form is deemed served on Tuesday 13 April; the particulars of claim is deemed served on Friday 16 April.

E-The claim form is deemed served on Tuesday 13 April; the particulars of claim is deemed served on Monday 19 April.

Answer 16

Option C is correct. Under the rules, the claim form is deemed served on the second business day after the step required (here sending by first class post) has occurred. Monday 12 April is a business day, as is Tuesday 13 April so the claim form is deemed served on the Tuesday. However, different rules apply to other documents.

The particulars of claim was delivered to the permitted address at 5pm. Even though Thursday 15 April is a business day, it was delivered after the ‘cut-off’ time of 4.30pm, so this date is not the day of deemed service. Service will be effected on the next business day, which is Tuesday 20 April because both Friday and Monday are bank holidays. The other options are wrong because one or more of the dates given do not accurately describe the dates of deemed service.

Question 17

A claimant commences a claim for breach of contract against a partnership (the defendant). Two years later, the partnership is sold to a company (the purchasing company), which takes over all the assets and liabilities. The claimant applies, within the limitation period, to substitute the partnership as a defendant with the purchasing company so that the claim may continue.

Which statement best describes the court’s powers in this situation?

A-Because the purchasing company has taken over the company’s liabilities, the claimant has the right to substitute the purchasing company as a new party.

B-The purchasing company must file their consent in writing with the court before they may be substituted as a defendant.

C-The court can substitute the purchasing company as a defendant because the claim cannot properly be carried on without the new party.

D-The court can substitute the purchasing company as a defendant as it is desirable to do so given that the company’s liabilities have passed to the purchasing company.

E-The court cannot substitute the purchasing company as a defendant.

Answer 17

Option D is the correct option as the application was made within the limitation period and the statement correctly describes the legal test to substitute a party.

Option A is wrong because the claimant will require the court’s permission to substitute the purchasing company as a new party given that the claim form has been served (two years have passed). Option B is wrong as written consent is only required if the claimant is to be added or substituted as a new party, and here it is the defendant.

Option C is wrong as this provision relates to applications made outside the limitation period, which does not apply in this instance. Option E is wrong as the court does have the power to substitute the purchasing company as a defendant.

Question 18

A client is a private limited company. A solicitor has received instructions from the company to start proceedings against the company’s previous auditors.

Which of the following best describes how the statement of truth should be completed in the claim form?

A-The solicitor may sign the statement of truth which should read, ‘I believe that the claimant believes that the facts stated in these particulars of claim are true.’.

B-The statement of truth can only be signed on behalf of the company by a director.

C-If the statement of truth is signed by the solicitor, it must include a declaration that the solicitor has told the claimant of the possible legal consequences if the matters stated are untrue.

D-If the statement of truth is signed by the solicitor, they must do so in their own name and not that that of their firm.

E-If the statement of truth is signed by the solicitor, it must include a declaration that the partnership has authorised the solicitor to do so.

Answer 18

Option D is the best answer. By way of information, CPR, PD 22 para.

3.10 provides that a legal representative who signs a statement of truth must sign in their own name and not that of their firm or employer.

Option A is wrong. Where a solicitor signs such a statement of truth on behalf of a claimant client it should read, ‘The claimant believes that the facts stated in these particulars of claim are true.’ By way of information, CPR, PD 22 para. 3.7 provides that where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own.

Option B is not the best answer. The statement of truth can be signed on behalf of the company by any person holding a senior position in the company, such as a director, the treasurer, secretary, chief executive and manager.

Option C is wrong. Although that is the conclusion that the court will draw, such a declaration is not required in the wording prescribed for the statement of truth. By way of information, CPR, PD 22 para. 2.1 provides that the form of the statement of truth verifying a statement of case should be as follows: ‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

Option E is wrong. Where a solicitor signs a statement of truth, they are deemed to have their client’s authority to do so and no separate declaration to that effect is needed. By way of information, CPR, PD 22 para. 2.1 provides that the form of the statement of truth verifying a statement of case should be as follows: ‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’

Question 19

A solicitor is acting for a firm of builders’ merchants. A claim was issued by one of the client’s customers and particulars of claim were deemed served yesterday. The customer claims that goods supplied by the client were substandard. The customer has refused to pay for the goods and is seeking damages for the additional costs of procuring replacement goods. The client denies that the goods were substandard and wishes to claim the unpaid sum from the customer.

Which of the following best describes how the solicitor should advise the client to respond to this claim?

A-A defence should be filed as soon as possible or the customer will be able to obtain judgment in default.

B-The client will have to issue separate proceedings if it wishes to pursue a claim for the unpaid sum.

C-The client will be able to defend the claim and make a counterclaim for the unpaid sum but must make the counterclaim at the same time the defence is filed.

D-The client will be able to defend the claim and make a counterclaim for the unpaid sum and can make the counterclaim without the permission of the court at the same time the defence is filed.

E-The client should make a counterclaim for the unpaid sum and the customer will have 14 days to file an acknowledgment of service of the counterclaim.

Answer 19

Option D is correct. The client will be able to make a counterclaim, and this can be made without the permission of the court if it is filed with or before the defence.

Option A is wrong because the client will have 14 days from the date of deemed service of the particulars of claim to either acknowledge service or file a defence. The claimant would only be able to apply for judgment in default if the client does neither so there is no requirement to act ‘as soon as possible’ as the facts indicate that deemed service was yesterday.

Option B is wrong because a counterclaim can be made, rather than the client issuing separate proceedings.

Option C is wrong as a counterclaim can be made after the defence is filed but only if the court gives permission.

Option E is wrong as there is no requirement to file an acknowledgement of service of the counterclaim.

Question 20

A claimant, who lives in England, was on a camping holiday in Scotland when they were involved in a road traffic accident with the defendant’s vehicle. The claimant suffered property damage and personal injury as a result of the accident. Upon returning home, the claimant commenced proceedings in the English courts and served proceedings on the defendant. The defendant is based in Scotland and intends to defend the claim but believes that the claim should be heard by the Scottish courts.

What is the best course of action for the defendant?

A-The defendant should file a defence disputing the jurisdiction of the court.

B-The defendant should acknowledge service so that they have additional time in which to file their defence.

C-The defendant should acknowledge service disputing the jurisdiction of the court.

D-The defendant should dispute jurisdiction within the acknowledgment of service and make an application to the court disputing jurisdiction.

E-The defendant should make an application to the court for summary judgment against the claimant.

Answer 20

Option D is the correct answer as a defendant who wishes to dispute jurisdiction should indicate this in the acknowledgement of service and should then make an application to the court disputing jurisdiction within 14 days. If the defendant does not take these steps, they will be taken to have submitted to the jurisdiction of the English courts.

Option A is wrong. The defendant should not wait to file a defence before disputing jurisdiction for the reasons explained above.

Option B is wrong. The defendant will receive additional time for the defence if it files an acknowledgment of service, but this alone is not the best course of action as the defendant must state on the acknowledgment that they dispute jurisdiction and then make an application disputing jurisdiction.

Option C is wrong. Whilst this is the correct first step that the defendant should take, they should then also make an application disputing jurisdiction.

Option E is wrong. An application for summary judgment would not assist the defendant in disputing the jurisdiction of the court.

Question 21

Tomlin Order

Answer 21

A Tomlin Order is a form of order that is used to record the terms of settlement between the parties and stay the proceedings.

The idea is that the schedule, and hence the terms of settlement, is not filed with the court and remains confidential between the parties.

I.e. basically allows a settlement to stay out of the public eye

Question 22

Cut off time for serving emails

Answer 22

4.30pm

Question 23

Postal items deemed served

Answer 23

Items posted first class are deemed to be served on the second day after it was posted but only if that day is a business day. For example: yhe second day after posting here on a Thursday is not a business day because it is a Saturday.

Question 24

What is the threshold to have a claim seen in the High Court (civil)? (Not personal injury)

Answer 24

All claims of a value of £100,000 or less (which do not include a claim for damages in respect of personal injury) must be started in the County Court. If its above 100,000k, it can be either the high court or county court depending on the complexities of the case

Question 25

Discretionary and mandatory grounds for setting aside a default judgement

Question 26

A claimant is preparing to issue High Court proceedings against the defendant in a breach of contract claim. The claimant’s solicitor is filling in the claim form (form N1) and considering what to include in the box at the bottom right-hand corner of the form entitled ‘financial summary of the claim’. The claimant has suffered a loss of profit as a result of the defendant’s breach of contract and estimates the loss to be £210,000. The claimant’s solicitor has so far incurred legal costs of £6,500.

Which of the following best describes how the ‘financial summary of the claim’ box should be completed on the claim form?

A-In the ‘amount claimed’ box the solicitor should write ‘the Claimant expects to recover more than £25,000’ and the legal representative’s costs should be marked ‘to be assessed’.

B-In the ‘amount claimed’ box the solicitor should write ‘the Claimant expects to recover more than £100,000’ and the legal representative’s costs should be marked ‘to be assessed’.

C-In the ‘amount claimed’ box the solicitor should write an estimate of what the claimant genuinely expects to recover and the legal representative’s costs should be £6,500.

D-In the ‘amount claimed’ box the solicitor should write an estimate of what the claimant genuinely expects to recover and the legal representative’s costs should be marked ‘to be assessed’.

E-In the ‘amount claimed’ box the solicitor should write ‘the Claimant expects to recover more than £200,000’ and the legal representative’s costs should be £6,500.

Answer 26

Option D is correct because the solicitor should provide an estimate of what the claimant genuinely expects to recover in the ‘amount claimed’ box. The legal representative’s costs should be marked ‘to be assessed’ as this is an unspecified claim.

Option A is wrong because in the ‘amount claimed’ box the solicitor should provide an estimate of what the claimant genuinely expects to recover, rather than including the value threshold for multi-track cases.

Option B is wrong because in the ‘amount claimed’ box the solicitor should provide an estimate of what the claimant genuinely expects to recover, rather than including the value threshold for High Court claims.

Option C is wrong because the legal representative’s costs should be marked ‘to be assessed’ for the reasons set out above.

Option E is wrong because the legal representative’s costs should be marked ‘to be assessed’ for the reasons set out above.

Question 27

A claimant issued and served a claim for breach of contract against a defendant company. The claim was issued within the limitation period, but the limitation period has now expired. The defendant company was recently sold to a new company, which took over all the assets and liabilities of the defendant. The claimant intends to apply to substitute the defendant company with the new company so that the claim may continue.

Which of the following best describes the court’s powers in this situation?

A-Because the limitation period has expired, the court can only substitute the new company as the defendant if satisfied that the substitution is desirable.

B-The court can substitute the new company as the defendant because the limitation period was current when proceedings were started and the claim cannot properly be carried on without the new company.

C-The court cannot substitute the new company as the defendant because the application will be made outside the limitation period.

D-The new company must file their consent in writing with the court before they may be substituted as the defendant.

E-Because the new company has taken over the defendant’s liabilities, the claimant has the right to substitute the new company as the defendant.

Answer 27

Option B is correct. The court has the power to substitute a party after the limitation period has expired if the limitation period was current when proceedings were started (which the facts confirm is the case) and one of the relevant grounds applies. Here, the relevant ground is that the claim cannot properly be carried on without the new defendant.

Option A is wrong because this provision relates to applications made within the limitation period.

Option C is wrong as a party may be substituted after the limitation period has expired provided the substitution is for one of the three specified reasons.

Option D is wrong because written consent is only required where a party is to be added or substituted as a claimant.

Option E is wrong because the claimant will require the court’s permission to apply to substitute a new party as the claim form has been served.

Question 28

A supermarket is bringing a claim against one of its major suppliers. The claim form is ready to be served. The defendant retained a firm of solicitors to act for it in pre-action negotiations. That firm has an email address and DX number on its letterhead, but not a fax number. The defendant’s headed notepaper includes a fax number only. Neither the defendant nor the solicitors have corresponded with the supermarket regarding service and the court has not authorised any alternative method for service in this case.

Which of the following methods of service would be permitted on these facts?

A-Second class post to the defendant.

B-First class post to the defendant.

C-DX to the defendant’s solicitors.

D-Fax to the number on the defendant’s headed notepaper.

E-Email to the email address on the defendant’s solicitors’ letterhead.

Answer 28

Option B is correct. Service of a claim form by first class post is permitted and no other option is permitted for the reasons described below.

Option A is wrong. Second class post is not a permitted method of service for a claim form.

Option C is wrong. Whilst it is possible to serve a claim form by DX, a claim form can only be served on a firm of solicitors if the defendant has nominated them in writing and this should not be presumed just because that firm has represented the defendant in pre-action negotiations. The facts suggest that the claimant is unaware of any such nomination.

Option D is wrong. Whilst it is possible to serve a claim form by fax, the receiving party must have expressly confirmed they are willing to accept service in this manner. A fax number on the defendant’s headed notepaper is not enough to satisfy this requirement.

Option E is wrong. Whilst the inclusion of a fax number on the solicitor’s letterhead is sufficient indication they are willing to accept service by fax, the same does not apply for an email address, where the solicitor must specifically confirm this method may be used for service. In any event, a claim form can only be served on a firm of solicitors if the defendant has nominated them in writing and this should not be presumed just because that firm has represented the defendant in pre-action negotiations. The facts suggest that the claimant is unaware of any such nomination.

Question 29

A solicitor is acting for a claimant in a dispute where settlement has just been agreed. The solicitor is drafting the Tomlin Order recording the terms of the settlement. The parties have agreed the following terms:

Each party shall have liberty to apply to the court if the other party does not give effect to the agreed terms (‘Term 1’).

The defendant shall pay to the claimant the sum of £125,000 within 14 days of the Order in full and final satisfaction of the claim (‘Term 2’).

In the event of late payment, the defendant will pay interest on any sum remaining due at a rate of 10% per annum (‘Term 3’).

The claimant and the defendant will, on the making of the Order, enter into an agency agreement on terms agreed between the parties and held by the claimant’s solicitors (‘Term 4’).

In all sales of goods from the defendant to the claimant within five years of this Order, the defendant will offer the claimant a discount of 12% (‘Term 5’).

The solicitor is aware that certain terms must appear in the order itself, whilst others can be put in the schedule or a separate document that is normally held by the parties’ solicitors.

Which of the terms must appear in the order itself?

A-Term 1

B-Term 2

C-Term 3

D-Term 4

E-Term 5

Answer 29

Option A is correct. A term giving each party liberty to apply to court if the other party does not comply with the settlement terms must be set out in the order itself in order to be effective.

Option B is wrong. A term setting out payment of a settlement sum can, but does not need to, appear in the order itself.

Option C is wrong. A term setting out interest on late payment of the settlement monies does not need to appear in the order itself.

Option D is wrong. This term does not need to appear in the order itself and indeed cannot appear in the order itself since it is not within the court’s power to impose this.

Option E is wrong. This term does not need to appear in the order itself and again cannot appear in the order itself since it is not within the court’s power to impose this.