Consolidate MCQ 1 Flashcards
You have just been instructed by a new client. Today’s date is 15th December and you advise your client that the limitation for its proposed claim expires on 27th December in 12 days’ time. The Practice Direction on Pre-action Conduct applies to the claim. Your client would like to proceed with the claim, but will not be available to assist with case preparation until early in January. Your client wants to know whether it is possible to postpone issuing proceedings until early in January? What advice should you give your client?
Your client should write a letter to the defendant setting out the nature of the proposed claim and await a response as a demonstration of good conduct in the proceedings in accordance with the Practice Direction on Pre-action Conduct.
Your client should comply with the Practice Direction on Pre-action Conduct prior to issuing proceedings as failure to do so will result in adverse costs consequences.
Your client should issue the claim form straight way but wait to serve it until the beginning of January when it is able to attach the particulars of claim to provide the defendant with more information on its underlying claim.
Your client should write a letter to the defendant setting out the nature of the proposed claim and suggesting that they agree to postpone proceedings until early in January.
Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
A client is claiming damages for negligence by a solicitor. The solicitor works in a city law firm’s commercial property department and is listed in Chambers & Partners as a specialist in commercial property law. It is alleged that the solicitor negligently advised the client about the meaning of a restrictive covenant which has directly let to the client suffering loss. Which of the following statements best describes the standard of care that the solicitor should have exercised in this case?
A. The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property and recommended in Chambers & Partners.
B. The solicitor must act to the standard of a reasonably competent practitioner.
C. The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
D. The solicitor must act to the standard the majority of solicitors would act.
E. The solicitor must act to the standard acceptable to a responsible body of practitioners.
C. The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
The solicitor owes the client a duty to exercise reasonable care and skill (in both contract and tort). The duty owed is the same in contract and tort. The duty in contract derives from an implied term to act with reasonable care and skill pursuant to s.13 Supply of Goods and Services Act 1982. The same duty is owned in tort as Hedley Byrne v Heller (and later Caparo v Dickman) established that a person who makes a negligent statement could owe a duty of care to a person who suffered pure economic loss through reliance on that statement if there is a special relationship between the parties. The solicitor / client relationship is an established category of special relationship where it is reasonable to impose a duty. The standard is that of a reasonably competent solicitor. The court will consider that a solicitor is not normally negligent if acting in accordance with general practice (Bolam), but that is not conclusive and in deciding what is reasonable, the court may look at the level of skill it believes members of the professional ought to have had (Bolitho). There is a slightly higher standard for someone of greater experience and skill, for example, specialising in commercial property, in contrast to a solicitor who is a general practitioner, but no higher standard. The individual Chamber’s recommendation does not affect the standard. This question is a reminder that you need to have knowledge of contract and tort. Please remember that you have access to contract and tort materials on Adapt.
A solicitor has been instructed on behalf of a supermarket chain to act in relation to a breach of contract claim against one of the supermarket’s suppliers. The supermarket chain is a private company. Having completed the requirements set out in the Practice Direction on Pre-action Conduct and having failed to settle the claim, the solicitor drafts the particulars of claim on behalf of their client. The managing director of the supermarket chain will sign the statement of truth on the particulars of claim. Which of the following gives the correct format for the statement of truth?
A. I am duly authorised by the Claimant to sign these particulars of claim. I understand that proceedings for contempt of court maybe 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.
B. The Claimant believes that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe 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.
C. The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe 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. I am duly authorised by the Claimant to sign this statement.
D. The Claimant understands that proceedings for contempt of court maybe 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.
E. I believe that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe 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.
C. The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe 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. I am duly authorised by the Claimant to sign this statement.
This is the correct form of a statement of truth where a statement of case (here, the particulars of claim) is being signed on behalf of a company. This was covered in the element ‘General rules in relation to statements of case’.
Your client wishes to commence proceedings for breach of contract against a supplier for defective goods. The amount of the claim is £108,000 (inclusive of £18,000 VAT). The claim is not complex. In which court can your client issue proceedings?
A. Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
B. Your client must issue proceedings in the County Court given that the principal amount is £90,000.
C. Your client must issue proceedings in the High Court.
D. If your client commences proceedings in the County Court it is likely that the court will transfer it to the High Court.
E. Because the case will be allocated to the multi-track, your client ought to commence proceedings in the High Court.
A. Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
Given that the amount is over £100,000 (even if this is only as a result of VAT), your client has a choice as to where to issue proceedings (7A PD 2.1 and CPR 16.3(6)). However, facts here may point towards the Count Court being the better choice given the complex is not complex and the value is only just over the £100,000 threshold.
You have just been instructed by a new client. Today’s date is 15th December and you advise your client that the limitation for its proposed claim expires on 27th December in 12 days’ time. The Practice Direction on Pre-action Conduct applies to the claim. Your client would like to proceed with the claim, but will not be available to assist with case preparation until early in January. Your client wants to know whether it is possible to postpone issuing proceedings until early in January? What advice should you give your client?
A. Your client should issue the claim form straight way but wait to serve it until the beginning of January when it is able to attach the particulars of claim to provide the defendant with more information on its underlying claim.
B. Your client should write a letter to the defendant setting out the nature of the proposed claim and suggesting that they agree to postpone proceedings until early in January.
C. Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
D. Your client should write a letter to the defendant setting out the nature of the proposed claim and await a response as a demonstration of good conduct in the proceedings in accordance with the Practice Direction on Pre-action Conduct.
E. Your client should comply with the Practice Direction on Pre-action Conduct prior to issuing proceedings as failure to do so will result in adverse costs consequences.
C. Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
Given the tight timelines and the application of the Practice Direction on Pre-action Conduct the best course of action for the client is to issue the claim form straight away (so preventing the claim from being time-barred by limitation) but contact the defendant so that they can apply to the court asking for a stay to proceedings allowing compliance with the Practice Direction (paragraph 17). The other options set out do not fully address the duty owed by the claimant to comply with the Practice Direction or deal effectively with the risk of the claim being time-barred due to limitation.
Your client is a company who is intending to commence proceedings against a partnership claiming professional negligence. The claim is for £500,000. As required, the company and the partnership have been following the Professional Negligence Pre-action Protocol. Recently, however, the solicitors for the potential defendant partnership were 2 days late in responding to the letter of claim without seeking an extension or offering any explanation. Which of the following statements best describes what your client should do, assuming it wishes to commence proceedings as soon as possible?
A. The company should commence proceedings as the Pre-action Protocol has not been followed by the partnership.
B. The company should not raise the partnership’s non-compliance with the protocol at the moment but instead ask the court to make an adverse costs order at the end of the case (CPR 44.2) to reflect the non-compliance.
C. The company should expect more favourable case management orders since it has complied with the protocol and the partnership has not.
D. The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
E. The company should raise the partnership’s non-compliance with the court and ask the court to impose costs sanctions for non-compliance with the protocol.
D. The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
Parties are expected to comply with the spirit of the protocols and the court will not be concerned with trivial breaches (paragraph 13 PD on Pre-action Conduct).
