da dispute resolution Flashcards
You are acting for a company that provides data analysis services to a hedge fund. The hedge fund is suing your client for breach of contract spanning several years, alleging that throughout the contract the client did not provide sufficient data as specified in the agreement. The client has a whole load of data that would be extremely time consuming and difficult to go through. The court has ordered standard disclosure, and the client is worried they are not going to be able to comply with the order.
How would you advise your client?
A. The client should ensure it hires the appropriate resources so that it can go through the whole database.
B. The client should be aware that they have a reasonable duty to search, which means they can place parameters and limitations on their search provided that it is justifiable and proportionate.
C. Only data relevant to the contract needs disclosing, so the client should just disclose these.
D. The client should write to the court informing them of their worries.
E. The client must go through all the data to disclose the appropriate documentation, otherwise they risk a breach of the Civil Procedure Rules.
Answer: B. Ideally, the client would have raised this at the CMC and, as this is likely to involve the disclosure of electronic documents, should have followed the electronic disclosure rules. However, on the facts, we are not told this has happened and are only told the court has issued disclosure directions. So, the best advice at this stage is to point to the reasonable duty to search. Clients don’t need to go through everything – they can be reasonable and proportionate about it, provided that it does not hinder a true hearing of the case. As the court has ordered standard disclosure, the client has a duty to disclose all documents that are relevant to the issues in the case. However, the duty to disclose is not unlimited, and the client is entitled to limit the scope of its search for relevant documents. The client should take into account the cost and burden of complying with the disclosure order, as well as the likely value of the documents in question. It may also be appropriate for the client to discuss with the other side the scope and timing of the disclosure. It is important to strike a balance between complying with the disclosure obligations and avoiding disproportionate and unnecessary cost.
Your client has just been successful in an interim injunction application against a website company it is suing. At the end of the hearing, once the court had granted the injunction, the application’s costs were determined, and the court made an order for costs in the case. The client has approached you asking what this means.
Which of the below statements is the most accurate in relation to the court’s costs order?
A. The client, as they won the application, will be able to recover the application’s costs.
B. The website company will recover their costs for the application as the client will likely win the trial.
C. If the client goes on to win at trial, they will recover the costs of the application; if they lose, they will pay for it.
D. The website company will recover the costs of the application.
E. Each party bears their own costs.
C. Costs in the case basically means that the winner takes all. It delays any decision on the application until the final outcome is determined. This can apply even if the client lost the application, and then ends up winning the trial.
Your client has received a letter from a company they had a contract with stating that your client has breached the contract. The company has set out why they believe this to be the case, the compensation they expect to receive, and have disclosed key documents. Your client wants to delay responding to annoy the other side. They also plan to dump a whole load of documents on them, some of which are not at all relevant to the case, just to stir things up.
What would you advise your client?
A. This tactic will effectively deter the company from litigation, so is a sensible one to take.
B. This should be combined with a letter setting out the reasons why the company is so wrong.
C. This should only be done if the client is confident that they will win at court.
D. The client should get a claim form issued as soon as possible to prevent them from doing so.
E. This is not in the spirit of the Pre-Action Direction, which requires parties’ correspondence and pre-action steps to be as efficient, cost-effective and reasonable as possible so that a settlement is reached.
Answer: E. Remember: the whole point of pre-action steps is to avoid court and to reach an agreement out of court. This kind of behaviour by the client will not help this and it goes against the principles of the Directive explicitly. There could therefore be cost consequences.
You are acting for a claimant who has been successful against a defendant in a breach of contract claim. The client was awarded damages, interest and costs. However, the debtor has not paid anything and the deadline to pay has passed. The client wants to get their money back but doesn’t know what steps to take to do so.
How would you advise your client?
A. The client must either employ an enquiry agent to look into the defendant’s financial situation or make an application for the defendant to appear before the court.
B. The client should apply for a committal order for the defendant to appear before the court.
C. The client should employ an enquiry agent to look into the defendant’s financial situation and make an application to the County Court for the defendant to appear to be questioned.
D. The client must employ an enquiry agent first. If the enquiry agent fails to find sufficient information, they should lodge an application to court.
E. The client must lodge an application to court as soon as possible to prevent the defendant from moving their assets abroad.
Answer: C. The client does not have to employ an enquiry agent, but it will assist the court and the client in finding out what the defendant’s assets are and may allow the client to carry out effective questioning of the defendant. Remember, at this stage it is about finding out what the defendant’s assets are so the client can get the appropriate order.
You are acting for a sales company suing a supplier for breach of contract. After the case management conference, the court issued a costs management order, recording and approving the budget submitted by the parties. After the trial, your client has won the case and the court has ordered that costs be awarded on a standard basis. Your client wants to know how much they will recover from the defendant in relation to their costs.
How would you best advise your client?
A. The client’s costs are recoverable. The client will likely recover all the costs set out in the budget, but any spending that is over-budget will not be recovered.
B. The client’s costs are recoverable, but the client will not be able to recover the total costs in the budget, but only a proportionate amount.
C. The client will recover all costs incurred and which are reasonable to an amount that is proportionate, as costs are being awarded on a standard basis.
D. The client will recover all costs in the budget and any further costs reasonably incurred and which are proportionate.
E. The client will recover the costs of the barrister’s time at trial plus fixed costs in the case.
Answer: A. If a court issues a CMO, if it awards costs on a standard basis it cannot depart from the costs set out in the budget. The client will recover the costs that are in the budget. Any spending that is over-budget will not be recovered.
The Duchess of Margate is deeply concerned about a number of compromising photographs that are in the hands of a national newspaper. She believes the photos are private and should not be published by the newspaper; she also believes the newspaper has breached her privacy and rights by obtaining the photos. She has not issued any proceedings in court. She has come to you for advice on what to do next.
Which of the below statements provides the best advice to the Duchess?
A. The Duchess must apply to the court for a with notice interim injunction and a without notice search order against the newspaper.
B. The Duchess must apply to the court for a without notice interim injunction and a search order against the newspaper, which should also be without notice.
C. The Duchess must apply to the court for a without notice interim injunction and a freezing order against the newspaper, both of which should be without notice.
D. The Duchess must apply for a without notice injunction to the court.
E. The Duchess must get a claim form issued and then make two without notice applications to the court for an interim injunction and a search order.
Answer: B. Two injunctions will be appropriate here: a standard interim injunction to prevent the newspaper from printing the photos and a search order to make sure there are no further ones, and that the newspaper is not hiding any. Injunctions can be applied for at any time, including before proceedings even begin. It should be made without notice as you need to act as quickly as possible to get the injunction to prevent publication. In this scenario, the Duchess is concerned about the publication of private photographs by a newspaper, which could potentially breach her privacy rights. To prevent publication, the Duchess should apply to the court for an interim injunction and a search order against the newspaper. The interim injunction would prohibit the publication of the photographs until the matter is determined by the court, and the search order would allow the Duchess’s legal team to search the newspaper’s premises for any copies of the photographs. These applications should be made without notice to the newspaper, as there is a risk that the newspaper may dispose of the photographs if it becomes aware of the applications.
Your client is a shoe manufacturing company and is facing a negligence claim from a consumer action group who claims their shoes have caused a foot condition. They served their particulars of claim on your client on 13 March, about a week after the claim form. The client now wants to know what steps it should take next, and when.
How would you best advise your client?
A. The client should either file a defence or an acknowledgement of service by 27 March.
B. The client must file an acknowledgement of service by 27 March.
C. The client must file a defence by 27 March.
D. The client should enter into negotiations to settle before filing anything, as facing a consumer rights group will be both costly and tricky.
E. The client must file the defence by 10 April.
Answer: A. The client can choose to file the defence or acknowledgement, but it must be done 14 clear days after the service of the particulars. E is wrong because that would only apply if the client had served the acknowledgement – it would give 28 days in total to file the defence.
A large, multinational grocery company is fed up with a local fish and chip van parking in its car parks. It wants sue to get compensation for this and to stop them from doing it in the future. It is seeking compensation of about £37,000.
Where should the grocery company submit their claim?
A. High Court, King’s Bench Division.
B. High Court, Court of Chancery.
C. High Court, the Business and Property Courts.
D. High Court (because an injunction is being sought).
E. County Court.
Correct
Answer: E. Starting point is value of claim: if under £100k, go to CC; if over, the case can go to the High Court and choose depending on the complexity and seriousness of the case. Here, as we are under £100k, the County Court is the correct forum, and we don’t need to worry about the complexity of the case etc.
An expert has produced a report for a trial you are working on which concerns the toxicity of a local river. In the report, the expert has concluded that, in his opinion, the river’s toxicity levels were above the normal range in England.
Is this statement admissible?
A. No: the expert is providing opinion, not facts.
B. No: the expert has not backed it up with appropriate analysis.
C. Yes: the expert has been instructed by the client to submit a report to the court.
D. Yes: an expert is used in order to give their opinion which the court considers in reaching its verdict.
E. Yes: the expert’s subject matter is within the court’s purview.
Answer: D. A witness is not allowed to give an opinion, but an expert is used precisely so that it can give its informed opinion on the issue. B is incorrect because we don’t have enough facts to make that assertion; it also does not relate to admissibility.
An individual is suing an architect for negligence, after the architect failed to get the design specifications right 3 years ago, leading to the structure of the individual’s new home being defective. Following the service of the claim form, it has turned out that the architect worked on the individual’s project with a consultant, who shared the fee the architect received as commission, and had a large hand in the final draft of the architect’s plans.
What action should the individual take in respect of this consultant?
A. Sue the consultant as a partner of the architect.
B. Apply to add the consultant as a party to the proceedings.
C. Sue the consultant separately.
D. Sue the consultant and architect together as a partnership.
E. Discontinue the current proceedings against the architect and restart them against both the architect and the consultant.
Answer: B. The consultant is going to be necessary to resolve proceedings, and we are within the limitation period so the application and the grounds are easier to make out. All the other options are not as good, because they are either not in line with the CPRs (such as discontinuing and restarting the claim) and/or are costly and lengthy for the individual.
client purchased some paints from a local trades store. However, when the client opened the paints up, they were not the colour the client ordered. The trades store invoiced the client, but the client is refusing to pay. The trades store has begun proceedings and has served the claim form and particulars of claim as a debt claim. The client wants to deny this and claim instead that the trades store breached their contract by not fulfilling the order specifications.
How should the client go about doing this?
A. The client should file their defence setting out their reasons for disputing the claim.
B. The client must file a document containing their defence in the first half and a counterclaim in the other claiming the trades store’s breach of contract.
C. The client must file their defence and at the same time a separate claim form and particulars containing their claim for breach of contract.
D. The client must file a counterclaim for breach of contract.
E. The client must first file a defence, and then 14 days after filing file a counterclaim.
Answer: B. A counterclaim is contained within the same document as the defence and occupies the second half of the document. It must set out the grounds of the claim and the amount claim plus interest, just like a particulars of claim. It is then filed and served on the claimant.
Your client is suing their employer in a multi-track case for gross misconduct and unfair dismissal. The client and their employer exchanged thousands of emails throughout the client’s time at the firm, many of which are directly relevant to the case as they show how the client behaved and whether the dismissal was justified. Your client has approached you asking how they should deal with these emails when it comes to disclosure.
How would you best advise your client?
A. The client needs to sift through all the emails she has in her control to determine which should be disclosed.
B. Only emails that are relevant to the dispute and are either helpful or unhelpful need disclosing.
C. The client should engage legal technology firms to assist in achieving an efficient, cost-effective disclosure.
D. The Electronic Disclosure Rules apply. The client must discuss the way the emails should be disclosed with the employer and prepare a summary to submit to court before the case management conference.
E. The Electronic Disclosure Rules apply. The client must serve notice on the employer of exactly what emails she will be disclosing. The employer should then respond with the same. Both must present their findings to the case management conference.
Incorrect
Answer: D. The Electronic Disclosure Rules apply to complex multi-track cases with thousands of electronic documents like emails. To ensure these documents are disclosed efficiently, the parties must discuss how to do this before the CMC and present a summary to the court. The court will then issue specific directions on electronic disclosure. The Electronic Disclosure Rules require parties to discuss how they will carry out the disclosure process, including identifying the scope of the search, the form of production, and the method of review. In this case, the client should discuss with the employer how to disclose the emails and prepare a summary of the agreed approach to submit to the court before the CMC. The summary should include the number of documents to be searched, the types of documents to be disclosed, and the search methodology.
A developer is trying to get a pub evicted from their land so that they can build on it. After the serve of the claim form and particulars of claim, the pub landlord failed to file an acknowledgement of service and defence within the deadlines. However, at the time, the pub landlord became incredibly sick with Covid-19 and was bed-bound. The solicitor caught it too after meeting with him to discuss the case. The developer has just been successful in a default judgment claim.
What steps should the pub landlord take at this stage?
A. None. Accept the judgment in default and pay the judgment.
B. Admit liability, but only for part of the claim. He should file a notice into the court disputing other elements of the liability.
C. Apply to set aside the judgment in default. He must contact the court as soon as possible to submit their good reason for not responding.
D. Make an application to set aside the judgment in default on the mandatory grounds to guarantee the court sets it aside.
E. File an application notice and witness statement as soon as possible to set aside the judgment in default on the discretionary ground that there was a “good reason” for the failure to respond to the claim form.
Answer: E. The pub landlord can either accept the judgment and pay up or apply to have it set aside. On these facts, the application would be on a discretionary ground – good reason – as we don’t have any facts to suggest it is on the other ground that the defendant has a good chance of winning their case. So, E is because the pub landlord has a good reason for not responding to the claim form within the time limit due to the illness caused by Covid-19. The court may exercise its discretion and set aside the judgment in default if the client can show that they have a real prospect of successfully defending the claim and that it is just to do so. The pub landlord should act quickly and file the application notice and witness statement as soon as possible to avoid any further delay.
A woman owns a local ice cream van. A few weeks ago, she ordered a shipment of ice-cream cones to arrive at her home on 19 December 2022. The cones did not arrive, which the woman only realised a week later on 26 December 2022.
What is the time limit for her claim?
A. 20 December 2022.
B. 19 December 2025.
C. 19 December 2028, and at the very latest 19 December 2037.
D. 22 December 2028.
E. 19 December 2028.
Answer: E. The time limit for breach of contract claims is 6 years from the date the breach occurred. Here, the breach is failure of delivery, which means it is 6 years later from that. The date the woman realised the breach is irrelevant.
A client is suing one of its suppliers for breach of contract. Due to the value of the claim, it has been allocated to the multi-track. The court has set a date for a Case Management Conference. The client has emailed their solicitor asking what this is and what they should do next.
Which of the below statements gives the most accurate advice to the client?
A. The case management conference is to determine what the parties need to do next for the trial. The client should prepare draft directions ready to submit to the court at least 7 days before the hearing.
B. The client needs to prepare draft directions, a costs budget and a case summary for the case management conference. The court will review these documents and issue directions for the rest of the trial.
C. The case management conference allows the court to review proceedings to date, issue new directions up to trial, set a date for trial and deal with other issues like costs. The client must agree and prepare draft directions, a case summary and a costs budget with the defendant.
D. The case management conference ensures the trial is conducted in accordance with the overriding objective. The client must prepare draft directions with the other party, a case summary and a costs budget, also with the other party.
E. The case management conference will be attended by the client’s legal representatives. The client must prepare a number of documents that will be submitted prior to the hearing.
Incorrect
Answer: C. This is the clearest and most full advice: it sets out what the CMC is for in terms that are understandable to the client and what next steps the client must take. D is incorrect because it will not be clear to the client what the overriding objective is. The case management conference is an important stage in the multi-track litigation process, where the court can review the case’s progress and issue new directions for the rest of the trial. The client should prepare draft directions with the other party, a case summary, and a costs budget, which will be reviewed by the court during the hearing. It is also important for the client to communicate and collaborate with the other party to reach an agreement on these documents.
