DR Flashcards
Rank the following, 1 being the most senior court, 4 being the least senior court.
1 Supreme Court
2 Court of Appeal
3 High Court
4 County Court
Rank the following, 1 being the most senior type of judge, 4 being the least senior type of judge.
4 District Judge
3 Recorder
2 High Court Judge
1 Justice of the Supreme Court
C wishes to bring a personal injury claim against a retailer following an accident in a shop. The claim is valued at £75,000. What is the best advice to give C about whether to issue a claim in the County Court or the High Court?
The claim must be issued in the County Court.
The claim should be issued in the Chancery Division of the High Court.
The claim should be issued in a specialist division of the County Court.
The claim can be issued in either the County Court or the High Court.
The claim must be issued in the High Court.
The claim can be issued in either the County Court or the High Court.
Correct. As this is a personal injury claim exceeding £50,000, both the County Court and High Court have jurisdiction. You will need to consider the factors of the value, complexity and importance to the public when making a final decision about whether to issue in the County Court or the High Court.
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Property, Trusts and Probate List
Commercial Court
Chancery: Property, Trusts and Probate List
QBD: Commercial Court
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Technology and Construction Court
Revenue List
QBD: Technology and Construction Court
Chancery: Revenue List
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Administrative Court
Insolvency and Companies List
QBD: Administrative Court
Chancery: Insolvency and Companies List
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Intellectual Property List
Planning Court
QBD: Planning
Chancery: IP List
Which specialist court / list is most suitable for which claim?
A dispute about the financial consequences of the delayed installation of a complex computer system.
A claim seeking a judicial review of a decision to remove funding from a GP practice.
A dispute between the two main shareholders of a company about their rights in relation to the company
A complex, international and high value dispute about an alleged fraud committed by a company against corporate investors.
Possible answers:
Administrative Court.
Commercial Court.
Commercial Court.
Technology and Construction Court.
A dispute about the financial consequences of the delayed installation of a complex computer system. – Technology and Construction Court.
A claim seeking a judicial review of a decision to remove funding from a GP practice. – Administrative Court.
A dispute between the two main shareholders of a company about their rights in relation to the company –
A complex, international and high value dispute about an alleged fraud committed by a company against corporate investors. – Commercial Court.
The general rule in relation to costs is that…
The court has a discretion to determine whether one party will pay the other party’s costs.
The unsuccessful party will be ordered to pay the costs of the successful party.
The party paying costs is stipulated in the CPR.
Each party will bear its own costs.
The unsuccessful party will be ordered to pay the costs of the successful party.
This is the general rule. In terms of the other answers, it is correct that the court has a discretion to determine whether one party will pay the other party’s costs, but this is not what you would describe as a ‘general rule’. It is very occasionally true that the party paying costs is stipulated in the CPR, but this is the exception rather than the rule.
If the court has ordered that one party will pay the costs of another party, the court will also need to put a figure on those costs. When it is deciding this figure, it will generally only allow recovery of…
…a reasonable and proportionate sum.
…a sum which is proportionate to the value of the claim.
…a reasonable sum.
…a reasonable and proportionate sum.
Correct
A wholesaler brings a breach of contract claim against a manufacturer. The wholesaler incurs costs of £85,000 in bringing this claim. What is the best advice to give to the wholesaler in relation to the cost consequences of the wholesaler succeeding at trial?
The wholesaler is likely to recover £85,000 in relation to costs.
The wholesaler is likely to be awarded its costs, but not the full £85,000.
The wholesaler may recover its costs, and they will be assessed at less than £85,000.
The wholesaler will recover £85,000 in relation to costs.
The wholesaler is likely to be awarded its costs, but not the full £85,000.
Correct. The general rule indicates that the wholesaler should recover its costs, so this is the ‘likely’ outcome on the facts presented, but the court will assess these costs, so it is unlikely that the full £85,000 will be recovered.
In which one of the following circumstances will the Court of Appeal be bound by a previous Court of Appeal judgment on the same issue?
Where the Court of Appeal considers an earlier Court of Appeal decision to have been given per incuriam.
Where the Court of Appeal decision conflicts with a Supreme Court Decision
Where the Court of Appeal does not agree with an earlier Court of Appeal decision
Where the Court of Appeal considers it would be in the interests of justice to depart from an earlier Court of Appeal decision.
Where the Court of Appeal is faced with two earlier conflicting Court of Appeal decisions
Where the Court of Appeal does not agree with an earlier Court of Appeal decision
Correct. This answer is incorrect. Young v Bristol Aeroplane sets out the three circumstances where a Court of Appeal can depart from a previous Court of Appeal judgement on the same issue.
Which one of the following would be a binding precedent in the Magistrates Court?
A decision of the Court of Appeal
A decision of the Crown Court
A decision of the County Court.
A dissenting judgment in the High Court
An obiter dicta in a decision of the Supreme Court
A decision of the Court of Appeal
Correct. Check your materials on the Rules of Precedent.
Which one of the following statements is incorrect?
The Supreme Court is bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
The Supreme Court in its Practice Statement of 1966 recognises too rigid adherence to precedent may lead to injustice and unduly restrict the proper development of the law.
The Supreme Court in departing from a previous judgement will bear in mind the danger of disturbing retrospectively the basis on which contract, settlement of property and fiscal arrangements have been entered into and the need for certainty as to the criminal law.
The Supreme Court is not bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
The Supreme Court was bound by its previous decisions before the Practice Statement of 1966. It sees the use of precedent as an indispensable foundation which provides legal certainty and allows the orderly development of legal rules.
The Supreme Court is bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
The Supreme Court is bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
CPR rules must be followed. The provisions in practice directions…
…must also be followed.
…are guidance which show best practice but need not necessarily be followed.
…explain the CPR rules.
…must also be followed.
Correct. Whilst it is true that the provisions in a practice direction might help you to interpret the CPR, the rules in the PDs must be followed in their own right.
The overriding objective includes dealing with cases at proportionate cost, which means…
…in ways proportionate to the amount of money in dispute.
…in ways proportionate to the amount of money in dispute, the complexity of the case and other factors.
…in ways proportionate to the importance of the case to the parties.
…in ways proportionate to the court’s resources.
…in ways proportionate to the amount of money in dispute, the complexity of the case and other factors.
Well done. This is what CPR 1.1 says. All the factors mentioned in the other answers are potentially relevant when considering proportionality in the overriding objective, but to focus on any one of those points would be to miss the multi-factorial approach which the court must take.
The court’s approach to case management is one best characterised as….
…active on the court’s part, meaning the court will ensure that cases progress appropriately even if the parties do not seek such involvement from the court.
…responsive to requests from the parties for court intervention and guidance, helping them to move the case along appropriately.
…active on the court’s part, meaning the court will act to seek out evidence in order to make a fair determination of the issues in dispute.
…active on the court’s part, meaning the court will ensure that cases progress appropriately even if the parties do not seek such involvement from the court.
Well done. This is what active case management means. See also CPR 1.4. The court is responsive to requests from the parties, but it is not only responsive – it takes action of its own accord, and this is really what ‘active’ case management means. Judges in the courts of England and Wales do not generally seek out evidence, rather than determine cases on the basis of the evidence put before them – so this answer would be wrong, and in any event, this is not really what case management is about.
A claimant is told that the civil standard of proof is on a balance of probabilities. How would you expand this description so that the claimant understands what ‘on a balance of probabilities’ means?
That the court can be ‘sure’ that the claimant’s case is correct.
That the defendant’s case is unlikely to be true.
That the claimant’s case is more probably true than the defendant’s case
That the claimant’s case is more probably true than not true.
Well done. This answer is correct. The civil standard of proof is on a balance of probabilities which means that a fact is established if it is more likely than not to have happened, hence the claimant’s case is more probably true than not true.
In a breach of contract case, which party usually has the burden of proving the duty?
Claimant and defendant
Defendant
Claimant
Claimant
Well done. The burden of proving any issue of fact or law generally falls on the party who asserts it. Therefore, as the claimant asserts the duty in order to establish a claim, it will usually fall on the claimant to prove the duty.
The approach to completing a case analysis should include consideration of….
Duty breach causation and loss
Causation
Breach
Duty
Loss
Duty breach causation and loss
You are instructed on behalf of the claimant in a breach of contract claim which is legally and factually very complicated. The claim is worth approximately £150,000 and, amongst other issues, the court will be invited to interpret a particular term of the contractin order todecide the case.Thisparticular termis a common term within the context of contracts of this nature and the outcome of the case will have important implications fora large number ofother businesses which use contracts with the same term.
What is the best advice to give the claimant in relation to where to start proceedings?
A - The claimant must issue this claim in the High Court.
B - The claimant could issue the claim in the High Court or County Court, but the High Court is more appropriate.
C - The claimant must issue this claim in the County Court.
The claimant could issue the claim in the High Court or County Court, but the County Court is more appropriate.
D - The claimant must issue this claim in the Magistrate’s Court.
B - The claimant could issue the claim in the High Court or County Court, but the High Court is more appropriate.
A claim over £100,000 (non-PI) can be issued in the High Court or the County Court, and should only be issued in the High Court where its value, complexity or importance to the public mean that it ought to be dealt with by a High Court Judge. These facts disclose complexity and importance to the public. The value is confidently over £100,000, although the value alone might not justify issuing in the High Court if the claim was straightforward and of no public importance
In an appeal before the Court of Appeal, the appellant relies in argument on an earlier decision of the Judicial Committee of the Privy Council (JCPC) which indicates that the appeal should be allowed. The respondent relies in argument on an earlier decision of the Court of Appeal which indicates that the appeal should not be allowed. How should the Court of Appeal treat the two decisions to which it has been referred?
A - The court should consider itself bound by the earlier decision of the JCPC.
B -The court should consider itself bound by the earlier decision of the Court of Appeal.
C- The court should consider itself bound by both earlier decisions and must transfer the appeal to a higher court.
D- The court should treat both earlier decisions as having persuasive value only and must decide which of the two to follow.
The court should treat both earlier decisions as without precedent value and should make its decision without regard to either.
This question is from the SRA’s sample questions for SQE1
B - The court should consider itself bound by the earlier decision of the Court of Appeal.
Privy Council decisions are not binding on the courts of England and Wales (so answers A and C are wrong).
The Court of Appeal binds itself (so D and E are wrong).
B is correct.
A claim for damages for professional negligence is settled on terms that the defendant surveyor must pay to the claimant damages of £60,000 together with the claimant’s legal costs, to be assessed on the standard basis. In 2020 the claimant had entered into a written conditional fee agreement with her solicitor which provided for a success fee of 90%. The solicitor has calculated his professional charges at £20,000 before addition of the success fee and VAT. What sum may the solicitor charge the client for his professional fees, net of VAT?
£15,000
£18,000
£30,000
£35,000
£38,000
This question is from the SRA’s sample questions for SQE1.
£38,000
The success fee is 90%. 90% of £20,000 is £18,000. This is on top of the ‘normal’ fee of £20,000. So the total charge is £38,000.
A claimant instructs its solicitor to put forward a breach of contract claim despite the solicitor’s advice that the claim is incoherent – it has no legal basis. Which of the following is the best advice as to whether such a claim should be put forward?
A - The solicitor should not help in putting this claim forward. The claimant can pursue the claim but risks a costs order against it.
B - The solicitor should help the claimant in putting the claim forward. The claimant risks a costs order against it.
C -The claimant cannot pursue the claim.
D- The solicitor should not help in putting this claim forward and should prevent the claimant from pursuing the claim.
E -The solicitor should help the claimant in putting the claim forward. The claimant and solicitor risk costs orders against them.
A - The solicitor should not help in putting this claim forward. The claimant can pursue the claim but risks a costs order against it.
Rule 2.4 requires that you (as a solicitor) only put forward statements, representations or submissions to the court which are properly arguable. B and E are therefore wrong. Whether the claimant pursues the claim is up to the claimant, so C and D are wrong. A is correct.
Which of the following IS NOT a consequence indicated in the practice direction on pre-action conduct as a possible result of failing to comply with the PD on pre-action conduct or applicable pre-action protocol?
The claim could be stayed.
The claim could be struck out.
The party failing to comply could be penalised in interest.
The party failing to comply could be penalised in costs.
The claim could be struck out.
Well done. Whilst this is theoretically possible (CPR 3.4(2)) it is not specifically mentioned in the practice direction on pre-action conduct, perhaps because alternatives such as a stay are more proportionate sanctions.
Which of the following is most likely to justify issuing proceedings without full compliance with the rules on pre-action conduct?
The defendant refusing to contemplate settlement of the claim.
The imminent expiry of a limitation period.
The value of the claim being so small that compliance would be disproportionate.
The imminent expiry of a limitation period.
Correct. A party cannot be expected to comply with the rules on pre-action conduct if that would lead to proceedings being issued too late from a limitation perspective. In these circumstances, a party should issue proceedings but then apply to court for a stay of the proceedings while they comply with the pre-action rules (PD on pre-action conduct, para 17). In terms of the other answers, compliance is expected in a claim of small value – you could argue that taking steps to resolve a claim without court proceedings is particularly important if the value of the claim is small. The defendant refusing to contemplate settlement of the claim is not a good reason not to comply with the pre-action rules.
The Practice Direction – Pre-action Conduct and Protocols requires the claimant (in the usual course of events) to write to the defendant with concise details of the claim and for the defendant to respond __________
within 28 days.
within 14 days.
as soon as possible.
within a reasonable time.
within a reasonable time.
The defendant is required to respond within a reasonable time, which could be 14 days in a straightforward case and no more than 3 months in a very complex one (paragraph 6 of the Practice Direction).
C wishes to bring a personal injury claim against his employer. The claim is valued at £65,000. What is the best advice to give C about whether to issue a claim in the County Court or the High Court?
The claim must be issued in the High Court.
The claim must be issued in the County Court.
The claim should be issued in a specialist division of the County Court.
The claim can be issued in either the County Court or the High Court.
The claim should be issued in the Chancery Division of the High Court.
The claim can be issued in either the County Court or the High Court.
Correct. As this is a personal injury claim exceeding £50,000, both the County Court and High Court have jurisdiction. You will need to consider the factors in 7A PD 2 when making a final decision about whether to issue in the County Court or the High Court.
In order to avoid a limitation defence, what must be done before the limitation date?
The particulars of claim must be filed at court.
The claim form must be issued.
The claim form and particulars of claim together must be filed and served.
The particulars of claim must be served.
The claim form must be served.
The claim form must be issued.
Correct. It is the issuing of the claim form that begins the claim and stops time running for limitation purposes (Limitation Act 1980, CPR 7.2 and 7A PD 5).
Which of the following isNOT specified in the CPR as a justification for issuing proceedings in the High Court (when the CPR does not indicate that either the County Court or the High Court is mandatory)?
The importance of the outcome to the public.
The availability of High Court resources (at the time of issue).
The claimant believes that the claim ought to be dealt with by a High Court judge.
The financial value of the claim.
The complexity of the procedures involved.
The availability of High Court resources (at the time of issue).
Correct. The relevant rules do not indicate that this is a potential justification.
The deadline for taking the ‘relevant step’ to serve the claim form depends on…
…when the claim form was issued.
…the method of service to be adopted.
…when the limitation period expires.
…the date of last correspondence with the defendant.
…when the claim form was issued.
correct
The deadline for taking the ‘relevant step’ to serve the claim form is 12.00 midnight on the calendar day [how many?] months after the date of issue of the claim form (assuming service within the jurisdiction)?
3
2
4
6
4
Well done. See CPR 7.5(1).
If particulars of claim are not contained in or served with the claim form they must be served…
…within 14 days of service of the claim form.
…before service of the claim form.
…within 14 days of service of the claim form or within 4 months of the claim being issued (whichever is later).
…within 14 days of service of the claim form, and also within 4 months of the claim being issued
…within 14 days of service of the claim form, and also within 4 months of the claim being issued
Well done. See CPR 7.4(2).
An antique furniture dealer commences proceedings against an individual in relation to £25,000 owed by the individual for furniture purchased. The individual has instructed solicitors and the solicitors have provided an address for service. Which of the following is a permitted method of service of the claim form?
Service by any of the methods listed in the other answers.
Service on the business address of the solicitor.
Service by post to the usual or last known residence of the individual by post.
Service by depositing the claim form at the usual or last known residence of the individual.
Personal service on the individual.
Service on the business address of the solicitor.
Correct. As the solicitor has been instructed to accept service of proceedings, this is now the only permissible place to serve the claim form (CPR 6.7).
A defendant agrees to accept service by email. The claim form is then duly served by email. The email is sent on Friday 19 October. The claimant receives notification that it has been read on Monday 22 October. When is the claim form deemed served?
Sunday 21 October.
Tuesday 23 October.
Saturday 20 October.
Monday 22 October.
Friday 19 October.
Tuesday 23 October.
Correct. The document served is a claim form (which has different rules to other documents). Deemed date of service will be the second business day after the relevant step to serve was taken, as listed in CPR 7.5(1). For service by email this step is sending the email. Both the first and second days must be business days (ie not weekend or other holiday days) so the first business day is Monday 22 October and the second business day, the date of deemed service, is Tuesday 23 October.
A defence is posted (second class) on Thursday 1 November. When is it deemed served?
Monday 5 November.
Thursday 1 November.
This is not an acceptable mode of service – it will not be deemed served at all.
Saturday 3 November.
Friday 2 November.
This is not an acceptable mode of service – it will not be deemed served at all.
Correct. Second class post is not an acceptable method of service, only first class post.
A witness statement properly addressed is collected by the DX service on Friday 4 March. When is it deemed served?
Saturday 5 March
Friday 4 March
Tuesday 8 March
Sunday 6 March
Monday 7 March
Monday 7 March
Well done. It would be deemed served second day after posting / giving to DX provider, if a business day, and otherwise it would be deemed served the next business day. The DX provider took it on 4 March. The second day after this is 6 March, a Sunday, and not a business day. So it would be deemed served the next business day, which is Monday 7 March.
If a witness statement is served by document exchange, the deemed date of service will be on….
The day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
The same day that the witness statement was left with, delivered to or collected by the DX service provider, provided this happens before 4.30pm and that day is a business day.
The day after the witness statement was left with, delivered to or collected by the DX service provider, regardless of whether that day is a business day or not.
The second day after the witness statement was left with, delivered to or collected by the DX service provider, regardless of whether that day is a business day or not.
The second day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
The second day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
Correct. The document served is a witness statement so the rules relating to documents ‘other than a claim form’ apply. These state that for service by DX the deemed date of service will be the second day after taking the necessary steps as listed in the rule to place the document with the DX service provider, provided that day is a business day.
Which of the following lists are all statements of case?
Claim form and Reply to defence
Particulars of claim and Witness statement
Acknowledgment of service and Defence
Defence and Expert’s report
Claim form and Reply to defence
Correct. Statements of case are key documents by which the parties set out their position in relation to the factual basis of the claim and the claimant’s entitlement to relief. They therefore include the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence.
The claimant has issued a claim form with attached particulars of claim and served the documents on the defendant. The defendant has filed and served a defence. The claimant realised it has made a mistake in the particulars of claim: it has not set out one of the duties. What should the claimant do?
Withdraw its claim
Tell the defendant
Apply to the court for an amendment
Apply to the court for an amendment
Correct. If a statement of case does not comply with necessary content or includes a mistake, it requires formal amendment. This is likely to require the input of the court, giving permission and making further directions to allow for the defendant to amend its defence, etc. There may be costs consequences for the claimant.
If a statement of case contains a serious false statement, what are the implications for the client who has signed the statement of truth?
Proceedings for contempt of court
Nothing. The statement of case is the responsibility of the solicitor.
The case is struck out
Costs sanctions
Proceedings for contempt of court
Correct. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases.
Angela Smith and Brian Jones are business partners in a firm which trades under the name ‘AB Partnership’. If suing this partnership, how would the name of this defendant appear on the claim form?
Angela Smith and Brian Jones trading as AB Partnership
AB Partnership (a Firm)
(1) Angela Smith (2) Brian Jones
AB Partnership Limited
AB Partnership LLP
AB Partnership (a Firm)
Correct. As the partners are being sued as a partnership (ie in the name of the firm and not as individuals) and there is nothing to suggest this is anything other than a traditional partnership (ie it is not an LLP), this is the correct format for the name of this defendant.
In working out the statement of value in the claim form, the following matters should not be taken into account…
Interest and costs only.
Damages, interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Correct. These items should be disregarded for the purposes of the statement of value in the claim form (CPR 16.3(6)).
It is often appropriate to include the particulars of claim on the claim form for a claim that is a….
Professional negligence claim
Personal injury claim for a brain injury
Against multiple parties
Complex contractual dispute
Simple debt claim
Simple debt claim
Correct. Particulars of claim are usually contained in a separate document, but they can be included in the claim form where they are relatively concise which they are likely to be in a simple debt claim.
In a negligence claim in the High Court, where the claimant claims damages for loss of reputation, which of the following most accurately describes the likely position in relation to interest being claimed in the particulars of claim?
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s69 County Courts Act 1984.
A claim for interest on these damages will not be included in the particulars of claim as the amount of these damages will need to be estimated by the court and are not yet outstanding.
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on contractual principles.
A claim for interest on these damages can be included in the particulars of claim. This must include an exact calculation including the percentage rate, period claimed and total to date and will be based on s35A Senior Courts Act 1981.
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981.
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981.
Correct. This is a tort claim (negligence) in the High Court so there is no contractual interest provision that might apply and the Senior Courts Act is appropriate for the statutory claim. This is an unspecified claim, as the damages concerned will need to be estimated by the court, so the interest can be pleaded generally.
The claimant agreed to provide the defendant with building materials. The contract setting out all terms of the agreement was signed by both the claimant and the defendant. There is now a dispute and the claimant has issued court proceedings against the defendant. What should the claimant attach to the particulars of claim?
A witness statement
Particulars of the conduct relied on
An expert’s opinion
Written agreement
Particulars of an oral agreement
Written agreement
Correct. There are requirements for the particulars of claim in specific types of claim and situations. Here, the claim is based on a written agreement and so the written agreement should be attached. The claim is not based on an oral agreement or an agreement by conduct and so particulars of words spoken or conduct are not required. It is not the purpose of the particulars of claim to set out evidence (from an expert or a witness); this is provided at a later stage.
What is the purpose of the prayer in the particulars of claim?
A summary of the interest sought by the claimant
A summary of the duty, breach, causation and loss
A summary of the parties
A summary of the damages sought by the claimant
A summary of the relief sought by the claimant
A summary of the relief sought by the claimant
Correct. The particulars of claim closes with a summary of the remedies sought by the claimant and so gives the court and the defendant a quick means of ascertaining what the claimant actually wants. It includes damages and, if claimed, interest.
A claimant company wishes to issue a claim in the County Court against three of its customers to recover the amount of several unpaid invoices and accrued interest totalling £75,000. The three customers were involved in a joint venture together and are jointly and severally liable for the debt.
Where should the claimant send this claim form to be issued?
A. The claimant should submit this claim form using the Money Claim Online service.
B. The claimant should send this claim form to be issued in the County Court Money Claims Centre.
C. The claimant should send this claim form to its local County Court hearing centre.
D. The claimant should send this claim form to the County Court hearing centre local to the lead defendant.
E. The claimant should send this claim form to the County Court hearing centre (or centres) local to the defendants.
B – The claimant should send this claim form to be issued in the County Court Money Claims Centre.
as there are 3 defendants!
could be A if there were 2 defendants
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 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 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 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.
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.
CORRECT: 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?
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
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.
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.
The company should expect more favourable case management orders since it has complied with the protocol and the partnership has not.
The company should commence proceedings as the Pre-action Protocol has not been followed by the partnership.
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
CORRECT. 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).
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?
Your client must issue proceedings in the High Court.
Because the case will be allocated to the multi-track, your client ought to commence proceedings in the High Court.
Your client must issue proceedings in the County Court given that the principal amount is £90,000.
Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
If your client commences proceedings in the County Court it is likely that the court will transfer it to the High Court.
Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
Correct. 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.
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?
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property and recommended in Chambers & Partners.
The solicitor must act to the standard of a reasonably competent practitioner.
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
The solicitor must act to the standard acceptable to a responsible body of practitioners.
The solicitor must act to the standard the majority of solicitors would act.
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?
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 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.
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.
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 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.
?? Week 1 Assessment Level MCQs
incorrect
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.
This is incorrect. The statement of truth must include a sentence to confirm that the party believes that the facts contained in a statement of case are true. Look again at your materials to see the precise wording required. Revisit the element ‘General rules in relation to statements of case’.
If the defendant acknowledges service indicating an intention to defend the claim, the effect of this is as follows:
This will extend the period for filing the defence to 28 days from the deemed date of service of the particulars of claim.
This will extend the period for filing the defence to 28 days from the deemed date of service of the claim form.
This will stay the claim for 14 days while the defence is prepared.
This will extend the period for filing the defence by an extra 14 days from the date the acknowledgment of service was filed.
This will extend the period for filing the defence to 56 days from the deemed date of service of the particulars of claim.
This will extend the period for filing the defence to 28 days from the deemed date of service of the particulars of claim.
Correct (CPR 15.4 (1)(b)).
If, after having filed an acknowledgment of service, the defendant is unable to file and serve their defence by the deadline prescribed by their rules their next step should be as follows:
Write to the court asking them to persuade the claimant to agree to an extension of time.
Request an extension of up to 56 further days from the claimant, notifying the court in writing of any such extension that is agreed.
Allow the deadline to pass but file and serve the defence as soon as possible after this.
Make an immediate application to the court for an order extending the time for service of the defence.
Request an extension of up to 28 further days from the claimant, notifying the court in writing of any such extension that is agreed.
Request an extension of up to 28 further days from the claimant, notifying the court in writing of any such extension that is agreed.
Correct. CPR 15.5 allows the parties to agree extensions of up to 28 days between themselves.
The claim form is served with particulars of claim attached. When does the acknowledgment of service need to be filed?
Within 14 days after service of the particulars of claim.
Within 28 days after service of the claim form
Within 14 days after service of the claim form
Within 28 days after service of the particulars of claim.
Within 14 days after service of the claim form
Correct (CPR 10.3).
The claim form is served indicating that particulars of claim will follow. The particulars of claim do indeed follow 2 days later. When does the acknowledgment of service need to be filed?
Within 28 days after service of the particulars of claim.
Within 14 days after service of the particulars of claim.
Within 14 days after service of the claim form
Within 28 days after service of the claim form
Within 14 days after service of the particulars of claim.
Correct (CPR 10.3).
The claim form is served with particulars of claim attached. When does the defence need to be filed (assuming no acknowledgement of service is filed)?
Within 28 days after service of the particulars of claim.
Within 14 days after service of the claim form
Within 28 days after service of the claim form
Within 14 days after service of the particulars of claim.
Within 14 days after service of the particulars of claim.
Correct (CPR 15.4).
If a claim for a specified sum is admitted in full, the judgment sum payable by the defendant will comprise…
The debt, interest, court fees and fixed costs.
The debt, interest and court fees, with an amount for costs to be assessed later.
The debt, interest and court fees.
The debt and interest.
The debt, interest and fixed costs.
The debt, interest, court fees and fixed costs.
Correct. Judgment in the exact sum due can be entered without delay as the amount of interest on the debt can be calculated to the date of judgment, the court fees are known and fixed court costs will apply (these are set out in CPR 45).
Following an admission by a defendant to pay a specified sum and a request for time to pay, the claimant’s position is as follows:
The claimant can reject the request for time to pay and insist on full payment immediately instead.
The claimant can reject the request for time to pay and impose their own rate of payment instead.
The claimant can reject the request for time to pay in which case the court will decide the rate of payment of the outstanding amount.
The claimant can accept the request for time to pay and demand further financial information from the defendant.
The claimant must accept the payment terms offered by the defendant in their request for time to pay.
The claimant can reject the request for time to pay in which case the court will decide the rate of payment of the outstanding amount.
Correct. The claimant has the option to reject the defendant’s request for time to pay and it is the court that will decide the rate of payment in these circumstances (CPR 14.10).
A defendant admits the whole of an unspecified claim. What will happen next?
The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with quantum (and costs) to be decided at a later hearing.
The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with fixed costs under CPR 45. Quantum will be decided at a later hearing.
There will be a hearing to confirm judgment on liability and quantum.
Judgment on liability will automatically be entered by the court with quantum (and costs) to be decided at a later hearing.
Judgment on liability and quantum will automatically be entered by the court and the case will be over.
The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with quantum (and costs) to be decided at a later hearing.
Correct. This is the approach that the court will take (CPR 14.6 and 14.7).
When calculating time periods expressed as a number of days in the CPR, the ‘clear days’ rule means:
The day on which the period begins never counts and if the day on which the period ends is defined by reference to an event, such as a hearing, that day does not count either.
The day on which the period begins never counts and neither does the day on which the period ends.
The day on which the period begins counts, unless it is defined by reference to an event, such as a hearing, and the day on which the period ends never counts.
Weekends and bank holidays are not included if the time period is three days or less.
Weekends and bank holidays are never included.
The day on which the period begins never counts and if the day on which the period ends is defined by reference to an event, such as a hearing, that day does not count either.
Correct. This is the rule that applies to all time limits in the CPR expressed as a number of days (CPR 2.8).
Where the specified period is [ ], any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.
Less than 5 days
Less than 7 days
Not more than 5 days
7 days or more
Not more than 5 days
Correct. The expression used in the CPR is ‘5 days or less’ (CPR 2.8), which means the same thing.
The court orders that “The time for service on another party of any question addressed to an expert instructed by that party is not later than 7 days after service of that expert’s report”. The defendant’s expert’s report is deemed served on Monday 23 August. Monday 30 August is a bank holiday. Are the questions on time if served on Tuesday 31 August?
Yes, because 7 clear days after Monday 23 August is Monday 30 August, but as the court office is closed on Monday 30 August, service is on time if completed by 31 August.
Yes, because 7 clear days after Monday 23 August is Tuesday 31 August.
No, because 7 clear days after Monday 23 August is Monday 30 August.
No, because 7 clear days after Monday 23 August is Monday 30 August.
Correct. 7 clear days after Monday 23 August is Monday 30 August (the end of the period is not defined by reference to an event, so you do not leave a clear day at the end). There is a rule that where a deadline relates to doing any act at the court office (such as filing a document at court) and the deadline for doing that act ends on a day on which the court office is closed, then the act is treated as on time if done on the next day on which the court office is open. However, that rule is not relevant here, because serving questions for an expert is not an act at the court office. See this element and CPR 2.8.
The court is to fix a date for a hearing. The hearing must be at least 28 days after the date of notice. If the court gives notice of the date of the hearing on 10 March, when is the earliest date for the hearing?
8 April
7 April
16 April
9 April
8 April
Correct. Here, the end of the period is defined by reference to an event (the hearing), so you leave a clear day at the end as well as at the beginning. You also count weekends because the period is more than 5 days. See this element and/or CPR 2.8.
Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Tuesday 10 February. What is the last date for service?
Saturday 7 February
Friday 6 February
Tuesday 3 February
Wednesday 4 February.
Wednesday 4 February.
Correct. You do not count the days at the beginning or end. You do not count the weekend when the period of time is 5 days or less, and here it is 3.
The following is a matter which must be included in the defence by the defendant …
A copy of any written agreement that the claim is based upon.
A summary of the relief sought.
The date on which the limitation period expired if limitation is being raised as an issue.
Particulars of the alleged breaches of duty in the claim.
Details of how the claim for interest has been calculated.
The date on which the limitation period expired if limitation is being raised as an issue.
Correct. Limitation is a defence and if it is being raised by the defendant, the date the limitation period is deemed to have expired must be stated in the defence (16 PD 13.1).
The defendant should require proof of an allegation in the particulars of claim in the following circumstances:
When the defendant knows that the allegation is incorrect but has their own version of events to put forward instead.
When the defendant knows that the allegation is incorrect.
When the defendant does not care if the allegation is correct or incorrect but wants the claimant to prove its case.
When the defendant has no knowledge of the facts of the matter stated.
When the defendant knows that the allegation is correct.
When the defendant has no knowledge of the facts of the matter stated.
Correct. If the defendant has no direct knowledge, they cannot admit or deny and should require the claimant to prove the point.
If the defendant’s defence omits to deal with an allegation in the particulars of claim, the position is generally that…
it is deemed that the defendant requires proof of the allegation.
the allegation is deemed irrelevant.
the allegation is deemed admitted.
the allegation will be struck out.
the allegation is deemed denied.
the allegation is deemed admitted.
Correct. This is the case unless the defendant has set out its own case in respect of the allegation, in which case the claimant will still be required to prove the allegation (CPR 16.5(3) and (5)).
A reply…
is a compulsory statement of case for the claimant following the service of a defence and counterclaim.
will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
is a compulsory statement of case for the claimant following the service of a defence.
should be filed within 14 days after service of the defence.
will usually be followed by further statements of case such as an amended defence.
will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
Correct. The reply is an optional statement of case and will only be served if needed. Please see the Defence and reply element (or CPR 15.8).
What is default judgment?
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service.
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service and/or the defence.
Judgment in favour of the claimant where the statements of case do not amount to a legally recognisable defence.
Judgment in favour of the defendant.
Judgment in favour of the claimant where the defence is weak.
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service and/or the defence.
Correct
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service and/or the defence is correct and is the meaning of default judgment (CPR 12.1). The other options were incorrect for the following reasons: Judgment in favour of the claimant where the defendant has not responded to the acknowledgment of service is incorrect because it is also important to check if the defendant has filed a defence. A claimant can obtain judgment in default of an acknowledgment of service if the defendant has not filed an acknowledgment of service or a defence and the time for doing so has expired. Judgment in favour of the claimant where the statements of case do not amount to a legally recognisable defence is incorrect because an application for strike out would be more appropriate. Judgment in favour of the claimant where the defence is weak is incorrect because an application for summary judgment would be more appropriate. Judgment in favour of the defendant is incorrect as judgment in default is judgment on the claim in default of the defendant doing something and is available to the claimant only.
When does the court have a discretion to set a default judgment aside?
If the defendant had applied for summary judgment or strike out before judgment was entered.
If the acknowledgment of service or the defence had been filed on time.
If the time limit for acknowledging service or serving a defence had not expired.
If the defendant has a real prospect of successfully defending the claim.
If the defendant had admitted the claim.
If the defendant has a real prospect of successfully defending the claim.
Correct
‘If the defendant has a real prospect of successfully defending the claim’ is the correct answer. This is one of two reasons the court may set aside a default judgment (CPR 13.3). Test yourself: can you remember what the other reason is? The other options were incorrect for the following reasons because in all the situations stated, the judgment would not have been entered correctly and the court must set aside default judgment in those situations (CPR 13.2) The court may set aside judgment if the acknowledgment of service or the defence had been filed on time is an incorrect answer as this judgment would not have been correctly entered and the court must set aside default judgment in this situation (CPR 13.2). The court may set aside judgment if the defendant had admitted the claim is an incorrect answer as the court must set aside default judgment in this situation (CPR 13.2). The court may set aside judgment if the defendant had applied for summary judgment or strike out before judgment was entered is an incorrect answer as the court must set aside default judgment in this situation (CPR 13.2). The court may set aside judgment if the time limit for acknowledging service or serving a defence has not expired is an incorrect answer as the court must set aside default judgment in this situation (CPR 13.2).
Your client is the defendant in the proceedings. The client failed to file its defence by the deadline as it did not have time to draft it. The claimant has entered default judgment against the client. The client believes it has a good defence. What should the client do next?
Apply for summary judgment.
Apply for strike out.
Submit the defence anyway.
Apply for default judgment to be set aside because judgment has been wrongly entered.
Apply for default judgment to be set aside asking the court to exercise its discretion.
Apply for default judgment to be set aside asking the court to exercise its discretion.
Apply for default judgment to be set aside asking the court to exercise its discretion is the correct answer. CPR 13.3 gives the court the discretion to set aside judgment if the defendant has a real prospect of successfully defending the claim. The defendant must, however, apply to set aside judgment without delay (CPR 13.3(2)). The other options were incorrect for the following reasons: Apply for summary judgment is incorrect. A default judgment has been made which effectively ends the proceedings and so the defendant must apply to set aside the default judgment before making any further applications. Apply for strike out is incorrect. A default judgment has been made which effectively ends the proceedings and so the defendant must apply to set aside the default judgment before making any further applications. Apply for default judgment to be set aside because judgment has been wrongly entered is incorrect because judgment has been correctly entered ie in default of the defendant filing the defence. Submit the defence anyway is incorrect because the defendant must address the default judgment by setting it aside before it can take a further step in the proceedings.
The date for filing the acknowledgement (or defence), Friday 23 December, passes. Price Prior, the Claimant’s solicitor, is closed for Christmas, reopening on Tuesday 3 January. On 3 January, the Claimant telephones the court to check that there is nothing on file. The Claimant successfully enters default judgement against the Defendant on 5 January. In fact, the Defendant has filed the acknowledgement at court on Thursday 22 December, but it had not been processed and had got lost in a backlog of work at court.
What is the Defendant most likely to do next? Choose one of the following options:
A - Nothing; it is too late as default judgment has been entered
B - Apply to set aside default judgment: the court has discretion to set aside because the Defendant has a real prospect of successfully defending a claim
C - Apply to set aside default judgment: the court has discretion to set aside because there is some other good reason why the Defendant should be allowed to defend
D - Apply to set aside default judgment: the court must set aside because judgment was wrongly entered.
D - Apply to set aside default judgment: the court must set aside because judgment was wrongly entered.
deadline had not passed and service had been acknowledged, the court must set it aside!
On Thursday 1 October, your client issued a claim form in the High Court against the defendant to the claim claiming £125,000 being the price of goods sold and delivered. Unfortunately, the parties did not follow the Practice Direction on Pre-action Conduct. The claim form and particulars of claim were served together by first class post on Wednesday 14 October. The defendant has not yet filed any response to the claim. It is now Monday 2 November. Your client wishes to enter judgment in default for the sum of £125,000 plus interest. Which one of the following answers is correct?
Your client may NOT enter judgment in default because your client did not write a letter of claim in accordance with the Practice Direction on Pre-action Conduct.
Your client may enter judgment in default because at least 14 days have elapsed since the claim form was issued.
Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
Your client may NOT enter judgment in default because the deadline for filing an acknowledgment of service has not elapsed.
Your client may NOT enter judgment in default because the defendant does not have to file an acknowledgment of service and the deadline for filing a defence has not elapsed.
Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
Correct
Correct. Default judgment may be obtained in default of the defendant filing an acknowledgment of service and/or a defence (CPRs 12.1 and 12.3). The defendant should have filed an acknowledgement of service within 14 days of service of the claim form where the claim form and particulars of claim were served together or within 14 days after service of the particulars of claim where the claim form stated that the particulars of claim was to follow (CPR 10.3(1)(a)); or a defence within 14 days of service of the particulars of claim (CPR 15.4). The deemed date of service of the claim form and the particulars of claim was Friday 16 October and the defendant should have filed either an acknowledgment of service or a defence within 14 days after the deemed date of service which was Friday 30 October. This date has now passed and it is open for the claimant to apply for default judgment.
incorrect
Your client may NOT enter judgment in default because your client did not write a letter of claim in accordance with the Practice Direction on Pre-action Conduct.
Incorrect as failure to comply with the Practice Direction on Pre-action Conduct has no effect on making an application for default judgment. Please review the elements on responding to proceedings (or see CPR 10.3, 15.4 and 12.3).
On receipt of the claimant’s claim form and particulars of claim, you advised your client, the defendant, that it has a good defence. You have just returned from holiday 3 days late due to your flight being cancelled. In your absence, judgment in default was entered against your client as you failed to file an acknowledgement of service or defence within 14 days of deemed service of the particulars of claim.
What is the best answer about whether there is anything you can do to enable your client to defend the claim?
Issue an application to set aside judgment in default as the defendant is not at fault for failing to file acknowledgement of service in time.
Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
Issue an application to strike out the claimant’s claim.
Issue an application to set aside judgment as the judgment in default has been wrongly entered.
There is nothing that can usefully be done.
Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
Correct. The application to set aside judgment in default should be made promptly and should show some merit to the defence. The other answers are incorrect because ‘fault’ is not necessarily relevant, the judgment has been correctly entered, and there is no basis for applying for strike-out.
A firm is acting on behalf of a defendant in a litigation matter. The claimant served the defendant in England and Wales with the claim form and particulars of claim by personal service at 2.00 pm on Monday 5th July. The firm would like to serve the defence on the latest date possible without seeking permission from the claimant.
Based on the above information, the defendant, acting prudently, should file and serve its defence by when?
2 August
30 August
19 July
21 July
4 August
2 August
Correct
Correct. 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 acknowledgement of service, 28 days after service of the particulars of claim (CPR 15.4). Time starts from the date of deemed service of the particulars of claim and the latest date to file a defence is 28 days after this date as long as an acknowledgement of service is filed.
If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, then there is some ambiguity in the rules as to whether the rules for service of the CF (CPR 6.14) apply to the particulars of claim too, or whether the rules for documents other than the CF (CPR 6.26) apply. This could lead to the claim form and particulars of claim being deemed served on different dates, despite being in the same envelope.
A party responding to proceedings would be prudent to act on the assumption that the particulars are served on the earliest possible date. Therefore, here, deemed service of the particulars of claim (served within England and Wales personally before 4pm on a business day) is the same day, Monday 5 July (CPR 6.26). A period of time expressed as a number of days is computed as clear days which means the day on which the period begins, 5 July, is not included. The day on which the period ends is not included if it ends in an event (otherwise, it is included).
This means counting time begins on a clear day, 6 July, and ends on the twenty-eighth day of counting, here, 2 August, as the period does not end in an event ie a hearing.
The claimant is an investor bringing a claim against a former advisor, alleging negligent advice. Your client is the defendant advisor. The claimant alleges in paragraph 6 of its particulars of claim that ‘in breach of the implied term of the contract to exercise reasonable skill and care, the defendant failed to provide the claimant with adequate information from which to make an informed decision as to whether or not to proceed with the investment’. The advisor tells you that this is not true and that the claimant was provided with adequate information in a letter dated 6 April from which to make an informed decision. Your case analysis confirms that the information in the letter was adequate to discharge the advisor’s duty of care.
How should the defendant respond to paragraph 6 of the particulars of claim in the defence?
‘The defendant requires proof of paragraph 6 of the particulars of claim.’
‘The defendant requires proof of paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
‘The defendant denies paragraph 6 of the particulars of claim.’
‘The defendant admits paragraph 6 of the particulars of claim.’
‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
Well done. As your client has another version of events, your client can deny the paragraph and set out that other version of events. In relation to the other answers, it would clearly be wrong to admit the paragraph, and putting the claimant to proof is only appropriate if the defendant can neither admit nor deny.
A building company is suing a sub-contractor for breach of contract in the High Court. The claim is valued at £500,000 and it is a few days before the defence is due to be served. The sub-contractor needs to collate some financial information from its quantity surveyor about the works in order to finalise its defence. The quantity surveyor has just confirmed that it is unable to supply this information for at least the next 2 weeks. The defendant requests an extension of 3 weeks to serve its defence but the building company refuses to agree this extension of time. The sub-contractor therefore applies to the court for an extension of 3 weeks.
Which of the following arguments will be the most persuasive when the court is considering granting this extension?
Whether the sub-contractor’s prospects of successfully defending the claim are good.
Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor.
Whether the case is in the High Court
Whether the building company’s prospects of success in the claim are good.
Whether the date of the final hearing will be affected.
Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor.
Correct. When the court is exercising its case management powers, it will want to further the overriding objective to ensure that any extension enables the court to deal with the case justly and at proportionate cost. This will be alongside the reasons why an extension is required by the sub-contractor / not agreed by the building company.
A counterclaim must…
Arise out of the same facts as the main claim.
Always be heard with the main claim.
Be related to the claimant’s cause of action in the main claim.
Be made at the same time as the defendant files their defence.
Be based on a cause of action in which the defendant can establish duty, breach, causation and loss.
Be based on a cause of action in which the defendant can establish duty, breach, causation and loss.
Correct
Correct. A counterclaim is a claim like any other and these four essential elements of the cause of action are essential.
A claimant claims £125,000 from the defendant in the main claim. The defendant makes a counterclaim of £50,000 and, as the facts underlying the counterclaim give rise to a set off, the defendant also raises this in defence to the main claim. Assuming both claimant and defendant win their respective claims, what will the final outcome be here?
The claimant will pay the defendant £75,000.
The defendant will pay the claimant £175,000.
The defendant will pay the claimant £125,000.
The defendant will pay the claimant £75,000.
The claimant will pay the defendant £50,000.
The defendant will pay the claimant £75,000.
Correct. The defendant will owe the claimant the £125,000 the claimant was awarded in their claim, less the £50,000 the defendant was awarded from the claimant in the counterclaim and which will be deducted by way of set off. The balance is £75,000.
A reply…
Is a compulsory statement of case for the claimant following the service of a defence.
Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
Will usually be followed by further statements of case such as an amended defence.
Should be filed within 14 days after service of the defence.
Is a compulsory statement of case for the claimant following the service of a defence and counterclaim.
Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
Correct. The reply is an optional statement of case and will only be served if needed. Please see CPR 15.8.
C is suing D1 and D2. D1 has the following claims: i) a counterclaim against C based on an unpaid invoice; and ii) a claim against D2 for a contribution or indemnity in respect of any damages D1 is ordered to pay to C.
Which specific provision of CPR 20 will govern D1’s claim against D2?
CPR 20.2(1)(b)
CPR 20.6
CPR 20.4
CPR 20.5
CPR 20.7
CPR 20.6
Correct. D1’s claim against D2 is a claim against an existing party for a contribution or indemnity.
C is suing D1 and D2. D1 brings an additional claim against E under CPR 20.7. In the proceedings E will be referred to as…
The Third Defendant.
The Part 20 Defendant.
The Third Party.
The Additional Claim Defendant.
The Fourth Party.
The Third Party.
Correct. Additional parties will be referred to in accordance with the order in which they are joined to the proceedings. See 20 PD 7.4. E is the first additional party to join the proceedings so is the Third Party.
C is suing D. D brings a CPR 20.7 additional claim against E. If E fails to respond to the additional claim within the applicable time limits…
E will be deemed to intend to defend the additional claim but will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will be able to apply for default judgment against E in the additional claim and E will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will not be able to apply for default judgment but E will be deemed to admit the additional claim and will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will be able to apply for summary judgment against E in the additional claim and E will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will not be able to apply for default judgment but E will be deemed to admit the additional claim. D will still need to prove any issues from the main claim between C and D in so far as they are relevant to the issues in the additional claim.
TO DO
LAST Q OF Multiple Causes of Action, Counterclaims and Additional Claims
C issues and serves a claim on D Limited following extensive dealings with the managing director of D Limited. D Limited defends the claim and the claim is now at the exchange of evidence stage. Although the claim was in time when issued, the limitation period has now expired. It transpires that the claim form mistakenly names the defendant as E Limited rather than D Limited.
Will C be able to amend the claim form to substitute E Limited with D Limited?
C will be permitted to amend the claim form as the limitation period was current when the original claim was issued.
C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant.
C will be permitted to amend the claim form but only if D Limited consents to this.
C will not be permitted to amend the claim form as E Limited is a completely different entity and has a different identity from D Limited.
C will not be permitted to amend the claim form as the limitation period for this has now expired and this would be a new claim against D Limited which is out of time.
C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant.
Correct. This situation falls within CPR 17.4(3). D Limited was always the intended defendant and the mistake causes no reasonable doubt as to the identity of the defendant.
Permission to amend the particulars of claim to add a party after the claim form has been served but before the limitation period has expired should be given if…
The amendment is ‘desirable’.
The amendment is made not too close to the trial date.
The amendment is agreed by all other parties.
The amendment is ‘necessary’.
The claimant has a reasonable prospect of success in the claim against the new party.
The amendment is ‘desirable’.
Correct. This is the main test as set out in CPR 19.2.
Amended statements of case must…
Use a numerical code for amendments.
Use coloured amendments.
Be verified by a statement of truth unless the court orders otherwise.
Show the original text as well as the new text.
Use margin references to indicate where amendments have been made.
Be verified by a statement of truth unless the court orders otherwise.
Correct. See CPR 22.1(2).
When is the court most likely to make an order for further information?
After a voluntary request to the other party has been refused or not responded to.
After the parties have indicated that no further information is required.
After the party seeking the information has made the request to the other party on the telephone.
After the parties have reached an agreement about the request.
After the parties have complied with the overriding objective.
After a voluntary request to the other party has been refused or not responded to.
Correct
It is correct to say that the court is most likely to make an order for further information after a voluntary request to the other party has been refused or not responded to. The court expects the parties make requests on a voluntary basis first and the parties should only make an application to the court for an order under CPR 18.1 if the request cannot be resolved – see 18 PD 1.
The other answers are incorrect:
After the parties have complied with the overriding objective. Parties are expected to comply with the overriding objective at all times and it will always be a factor that the court takes into account when making an order, but it is not the ‘reason’ for the court making an order here.
After the parties have reached agreement about the request. If the parties have reached agreement, they do not need a CPR 18.1 court order – 18 PD 1.
After the party seeking the information has made the request to the other party on the telephone. The party seeking information should serve a written request on the other party stating a date for a response (and allowing the other party a reasonable amount of time to respond) – 18 PD 1.
After the parties have indicated that no further information is required. If no further information is required by either party, they do not need a CPR 18.1 court order – 18 PD 1.
When an application for an order for further information is made to the court, it should be made as…
The court’s allocation to track – CPR 26
An interim application – CPR 23
Relief from sanctions – CPR 3.9
An amendment to a statement of case – CPR 17
The use of the court’s general case management powers – CPR 3.1
An interim application – CPR 23
Correct
The correct answer is that an application for an order for further information is made as an interim application pursuant to CPR 23. The application should be made as an interim application under CPR 23 (18 PD 5).
The other options were incorrect:
The use of the court’s general case management powers – CPR 3.1
Relief from sanctions – CPR 3.9
The court’s allocation to track – CPR 26
An amendment to a statement of case – CPR 17
These relate to other types of application.
A party can obtain further information from the other party to clarify or give additional information in relation to any matter…
Which is in dispute in the proceedings
Which is contained in or referred to in a witness statement.
Which is contained in or referred to in a particulars of claim.
Which is contained in or referred to in a defence.
Which is contained in or referred to in a statement of case.
Which is in dispute in the proceedings
Correct
The correct answer is that a party can obtain further information from the other party to clarify or give additional information in relation to any matter which is in dispute in the proceedings as explained at the beginning of this element.
The incorrect answers are:
Which is contained in or referred to in a statement of case.
Which is contained in or referred to in a defence.
Which is contained in or referred to in a particulars of claim.
Which is contained in or referred to in a witness statement.
The definition is broader than these options. The request is often in relation to a matter contained or referred to in a statement of case, but the court’s power is not limited to matters contained or referred to in a statement of case (or to any other particular document).
A construction company intends to sue one of its sub-contractors, an electrician, for breach of contract. The claim form has been issued, but it has not yet been served. Before service of the claim form, the construction company decides to add a new defendant, a plumber, to the claim as an additional party. Which of the following best describes the position of the construction company?
The construction company will require the written consent of both the electrician and the plumber to add the additional party.
The construction company should seek the written consent of the electrician to add the additional party.
The construction company should apply to the court for permission to add the additional party.
The construction company will not require the court’s permission to add the additional party.
The construction company should seek the written consent of the plumber to be added as an additional party.
The construction company will not require the court’s permission to add the additional party.
Correct
Well done. The claim form has been issued but not served. In this case, the court’s permission is not necessary to add the plumber as an additional party (nor is permission needed from either the electrician or the plumber) (CPR 19.4(1)).
incorrect
The construction company should apply to the court for permission to add the additional party.
This is incorrect. It is not necessary to apply to the court for permission to add the plumber to the claim in this case. Consider carefully what steps have been taken so far and what is necessary in this case.
In a case involving four defendants, one of the defendants amends its defence to allege that the claimant was contributorily negligent. The court grants permission for this amendment. Which party will usually pay the costs of and arising from the amendment?
The defendant applying for the amendment
The unsuccessful party at the end of the trial in accordance with the general rule on costs (CPR 44.2).
The claimant
All the parties to the action
All the defendants
The defendant applying for the amendment
Correct
Well done. This reflects the rule that a party applying for an amendment will usually be responsible for the costs of and arising from the amendment (PD17 and PD19). So, in this case it is likely that the defendant making the amendment would be responsible for the costs. Note that the rule is not obligatory, and the court can depart from it. Given this rule, it is unlikely that the costs would fall to be determined at the end of the trial as most other costs would (CPR 44.2).
incorrect
The unsuccessful party at the end of the trial in accordance with the general rule on costs (CPR 44.2).
Your answer is incorrect. Please consider amendments and costs again and think about whether the general rule on costs would apply in this instance and then have another go.
Your client has received a request for further information by letter in respect of a defence it filed to a claim against it for misrepresentation. The defence as currently drafted fails to fully detail the oral representations made by your client before the contract was entered into. Your client agrees to provide the information requested. Which of the following most accurately describes the form your client’s response to the request for further information should take?
The client’s response should take the form of an amended defence.
The client’s response should be in writing, signed, dated and be verified by a statement of truth.
The client’s response should be in the form of a letter in reply which will be signed and dated as normal.
The client should provide the information in whichever form is most proportionate including verbally, for example, in a telephone call.
The client’s response should be in writing, signed and dated but need not be verified by a statement of truth.
The client’s response should be in writing, signed, dated and be verified by a statement of truth.
Correct. Whatever form the request has taken, the response must be in writing, dated and signed by either the party or their legal representative and also verified by a statement of truth. It could be by letter or by way of a formal reply. (PD 18)
During her employment as a delivery driver, your client, Sue, was involved in a road traffic accident with another car. Your client has sued the driver of the other car, Amir, for personal injuries. Amir, in turn, has issued a counterclaim against your client claiming damages for personal injuries that Amir also sustained in the road traffic accident. Amir wishes to use the same arguments in the counterclaim against your client’s employer. The employer is vicariously liable for your client’s actions. Can Amir add your client’s employer as a party to the proceedings?
Yes, as an ‘other’ additional claim (CPR 20.7)
No, as there is no Part 20 claim that provides for this situation.
Yes, as the defendant’s additional claim for contribution or indemnity from another party (CPR 20.6)
Yes, as a counterclaim against the claimant (CPR 20.4)
Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
Correct. Your client, Sue, is the claimant and Amir is the defendant. Amir is seeking to include a counterclaim against a person ‘other than the claimant’ (i.e. other than Sue, namely, the employer) where Sue and the employer are jointly involved in the situation. (CPR 20.5)
incorrect
Yes, as an ‘other’ additional claim (CPR 20.7)
Incorrect. Whilst it is arguable that CPR 20.7 can be used for this type of claim, one of the other answers is more clearly correct. Have another look at the element and your workshop notes and rethink which type of Part 20 claim applies here.
The claimant claims £32,000. The defendant pleads £8,000 ‘set off’ in its defence and counterclaim against the claimant. If the claimant is successful at trial and the defendant is also successful at trial in its counterclaim, what is the effect of the judgment?
Defendant pays the claimant £24,000
Defendant pays the claimant £8,000
Claimant pays the defendant £8,000
Defendant pays the claimant nothing
Defendant pays the claimant £32,000
Defendant pays the claimant £24,000
Correct. The set off applies and extinguishes £8,000 of the claimant’s judgment against the defendant. The defendant therefore pays the claimant the net sum of £24,000.
If an applicant makes a standard with notice interim application, what is the timeframe within which the applicant must serve a copy of the application notice and supporting documentation on the respondent?
As soon as practicable before the hearing
As soon as practicable but not less than 3 clear days before the hearing.
Not less than 3 clear days before the hearing
As soon as practicable but at least 3 clear days after issuing the application notice.
Not less than 14 clear days before the hearing
As soon as practicable but not less than 3 clear days before the hearing.
Correct
Correct: if an applicant makes a standard with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as practicable but not less than 3 clear days before the hearing (CPR 23.7).
The directions order confirms that witness statements are due to be exchanged in 5 days’ time. The applicant wishes to apply to the court for extra time to exchange witness statements. The parties have been unable to agree an extension of time. How would the applicant make an interim application to apply for an extension of time to exchange witness statements?
With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.
Without notice as the object of the order would be defeated by providing notice.
Without notice due to the urgency.
With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.
With notice by filing at court an application notice and a witness statement and paying a fee.
With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.
Correct: an interim application is made by filing at court an application notice, a witness statement and a draft order and paying a fee.
incorrect
With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.
Incorrect
It is incorrect to say with notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee – the hearing date is something the court would endorse on the application notice upon issue to then be served on the respondent. Please revisit the element.
How, if at all, will a respondent know what evidence has been put forward by the applicant in support of a without-notice application?
The evidence will be served on the respondent before the hearing
The evidence will be served on the respondent after the hearing
The respondent will not know what evidence has been put forward in support of a without-notice application
The evidence will be served on the respondent after the hearing
Correct
Correct. The applicant must serve the application notice, evidence in support and order on the respondent as soon as possible after the hearing (CPR 23.9).
When is the first opportunity a claimant can apply for summary judgment against the defendant without needing the court’s permission?
Any time after proceedings have commenced.
After the claimant has filed particulars of claim.
At the same time as filing the directions questionnaire.
After the defendant has filed an acknowledgment of service.
After the defendant has filed an acknowledgment of service or a defence.
After the defendant has filed an acknowledgment of service or a defence.
Correct
The correct answer is the claimant can apply for summary judgment ‘after the defendant has filed an acknowledgment of service or a defence’ (CPR 24.4). To apply before this, the court’s permission would be needed. An incorrect answer is ‘after the defendant has filed an acknowledgment of service’ as this is not the best answer; the defendant could choose to only file a defence which would then be the trigger for the first opportunity a claimant has to apply for summary judgment. An incorrect answer is ‘after the claimant has filed particulars of claim’ as the trigger is a step by the defendant, not the defendant. An incorrect answer is ‘any time after proceedings have commenced’; this is the rule for when the defendant can first apply for summary judgment, not the claimant. An incorrect answer is ‘at the same time as filing the directions questionnaire’; this is often an ideal time for either party to apply for summary judgment, but it is not the first opportunity.
The claimant files a claim form and particulars of claim. The defendant files an acknowledgment of service indicating an intention to defend the claim. The claimant applies for summary judgment. Both parties attend the summary judgment hearing where the judge dismissed the application and makes a costs order. What order is the court most likely to make next?
Allocation to a track
Conditional order
Order the parties to file a statement of costs
Order to set aside the summary judgment hearing
Directions order for the defendant to file and serve its defence
Directions order for the defendant to file and serve its defence
Correct
A directions order for the defendant to file and serve its defence is correct. The summary judgment application was made before the defendant filed its defence and therefore the time for the defendant to file its defence is extended until after the summary judgment hearing (CPR 24.4(2)). The court has made a decision on summary judgment for dismissal of the application and so the claim will continue. The court may give directions for the defendant to file and serve the defence as this has not already taken place. An order to set aside the summary judgment hearing is incorrect as there is nothing on the facts to suggest this is appropriate e.g. both parties attended the summary judgment hearing. A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Allocation to a track is incorrect. Whilst the court will delay allocating the matter to a track until after the summary judgment hearing, it will want to see the defendant’s case (in the defence) first. Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing.
incorrect
Conditional order
Incorrect
A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Revisit this element in relation to outcomes of the hearing.
Order the parties to file a statement of costs
Incorrect
Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing. Revisit this element in relation to outcomes of the hearing.
The claimant ordered 20,000 laptops from the defendant. The laptops malfunction. The claimant issues a claim against the defendant claiming that 20,000 laptops are faulty. The defendant files a defence. The claimant believes that the defendant is entirely at fault and applies for summary judgment. If the claimant’s summary judgment application is successful, which order is most likely to be made by the court?
Conditional order
Dismissal of the application
Judgment on part of the claim
Dismissal of the claim
Judgment on the claim
Judgment on the claim
Correct
The correct answer is judgment on the claim. The claimant’s claim is in relation to 20,000 laptops (the entire order) and so, if successful on summary judgment, the claimant will get judgment on the claim and the entire claim is over. Dismissal of the claim is incorrect as this would be appropriate where the defendant successfully applies for summary judgment; it is the claimant who has applied here. Dismissal of the application is incorrect as this is appropriate where either the claimant or defendant’s application for summary judgment has failed, the summary judgment application is dismissed and the claim continues to trial. Conditional order is incorrect as there is nothing on the facts to suggest that the judge is not wholly convinced of the merits of one party’s case necessitating conditions ordered by the court. Judgment on part of the claim is incorrect because there are problems with the entire order of 20,000 laptops. There is nothing on the facts yet to suggest that part of the order is not faulty.
The court must not make an interim payment of more than________________________ .
Choose the correct missing words to complete the sentence.
66% of the likely amount of the final judgment
a reasonable proportion of the likely amount of the final judgment
A reasonable proportion of the estimated costs
A reasonable proportion of the sum claimed by the claimant
a reasonable proportion of the likely amount of the final judgment
Correct. See CPR 25.7.
Which of the following IS NOT one of the conditions on which an application for an interim payment can be based?
It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment.
The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.
The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
Correct
Correct. This IS NOT one of the conditions on which an application for an interim payment can be based. It is part of the rules relating to summary judgment. All the other answers are conditions on which an application for an interim payment can be based.
The claimant has made a personal injury claim against the defendant. The court has ordered judgment on liability in favour of the claimant, but the amount of damages have yet to be assessed. The claimant would like an interim payment as soon as possible and so asks the defendant for an interim payment. What is the best course of action for the claimant if the defendant does not agree to voluntarily make an interim payment?
Apply to the court for an interim payment as if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant.
Do not apply to the court for an interim payment and wait until damages are assessed.
Apply to the court for an interim payment as the claimant is entitled to an interim payment in a personal injury claim.
Apply to the court for an interim payment as the defendant has admitted liability.
Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.
Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.
Correct
Correct – the best course of action for the claimant to take if the defendant does not agree to voluntarily make an interim payment is to apply to the court. The claimant must satisfy one of the prescribed conditions (CPR 25.7) and, on the facts, has done this as the claimant has obtained judgment against the defendant.
The other options were not the best course of action: * The claimant cannot apply to the court for an interim payment as, on the facts, the defendant has not admitted liability. * The claimant cannot apply to the court for an interim payment as you are not given any facts to suggest that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant. * It is incorrect to say that a claimant is entitled to an interim payment in a personal injury claim. One of the prescribed conditions (CPR 25.7) must be satisfied in any type of claim. * It is not the best course of action to say ‘do not apply to the court for an interim payment and wait until damages are assessed’ because if one of the prescribed conditions (CPR 25.7) applies, the claimant has a choice to apply for an interim payment.
You act for a claimant in a personal injury claim. The claimant was badly injured by the defendant in a road traffic accident several months ago. The defendant has admitted liability in its defence. The claim is now at the case management stage. The claimant has not yet been able to return to work due to injuries sustained in the accident and has used all their savings to live on since the accident. The claimant has to move into new rented accommodation and needs money for the deposit and general expenditure for food and travel. Can the claimant apply to the court for an interim payment from the defendant at this stage of the proceedings?
No, because the claimant can only claim an interim payment pre-action.
Yes, because the period for filing a defence has expired.
No, because a final judgment has not been made against the defendant.
No, because the claimant cannot claim an interim payment during proceedings.
Yes, because the period for filing an acknowledgment of service has expired.
Yes, because the period for filing an acknowledgment of service has expired.
Correct
Correct. The claimant can apply to the court for an interim payment from the defendant because the period for filing an acknowledgment of service has expired an application for an interim payment can be made after this stage of the proceedings has been reached (CPR 25.6).
The incorrect answers are: Yes, the period for filing a defence has expired; this is not the rule (CPR 25.6). No, because the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek financial assistance on account of damages in certain situations during proceedings (CPR 25.6). No, because the claimant cannot claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. No, because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, this would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6)
incorrect
No, because the claimant cannot claim an interim payment during proceedings.
Incorrect. It is not the case that the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek an interim payment on account of damages in certain situations during proceedings (CPR 25.6). Please revisit the element.
No, because a final judgment has not been made against the defendant.
Incorrect. It is not the case that claimant cannot claim an interim payment because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6). Please revisit the element.
Yes, because the period for filing a defence has expired.
Incorrect. The claimant cannot apply to the court for an interim payment from the defendant on the basis that the period for filing a defence has expired; this is not the rule (CPR 25.6). Please revisit the element.
No, because the claimant can only claim an interim payment pre-action.
Incorrect. It is not the case that the claimant can only claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. Please revisit the element.
The defendant must satisfy the court of two matters before an order for security for costs can be made. One or more of the prescribed conditions in the rules must be satisfied, and having regard to all the circumstances, it must be ________ to make an order.
Choose the correct missing word to complete the sentence.
Reasonable
Necessary
Proportionate
Just
Just
Correct
Correct. See CPR 25.13. It would be wrong to say that it must be ‘necessary’. Whether it is ‘reasonable’ and ‘proportionate’ will be relevant considerations, and part of considering what is ‘just’, but ‘just’ is the key concept.
The claimant to a claim proceeding in the courts of England and Wales is a company with its registered office and central administration in North Carolina, USA. It has not got offices or assets anywhere outside of North Carolina, USA. You do not yet have access to its accounts in order to assess its financial situation. The defendant is a company registered in England and Wales which is currently in financial difficulties.
On the available facts, which condition, if any, could the defendant rely on to make an interim application for security for costs assuming that it is also able to satisfy the court that, in all the circumstances, it is just to make the order?
The defendant could rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
The defendant cannot rely on any of the conditions.
The defendant could rely on the condition that the claimant is resident out of the jurisdiction.
The defendant could rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it.
The defendant could rely on the condition that the defendant is an impecunious company.
The defendant could rely on the condition that the claimant is resident out of the jurisdiction.
Correct
Correct – the defendant could rely on the condition that the claimant is resident out of the jurisdiction as it is in North Carolina, USA which is not a State bound by the 2005 Hague Convention (CPR 25.13(2)(a)). The other options were incorrect: The defendant could not rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so because although the claimant is a company, there is no evidence on the available facts that it is impecunious. The defendant could not rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it because there is nothing on the facts to suggest that the claimant has taken any steps in relation to its assets. It cannot be said that the defendant cannot rely on any of the conditions because one does apply. The defendant could not rely on the condition that the defendant is an impecunious company because this is not a condition: all conditions are based on the claimant’s status/actions, not the defendant’s.
The claimant company is a breakfast cereal manufacturing company. The claimant has issued proceedings to claim losses of £200,000 from the defendant, a grain supplier, for breach of contract. You act for the defendant who has submitted its defence. Yesterday, a leading food trade magazine published an article about the claimant’s inability to meet customer demand for breakfast cereal and that it is experiencing cashflow difficulties. The defendant has therefore today checked the claimant’s most recent annual accounts filed at Companies House which show a loss of £215,000.
What would be the most appropriate interim application that the defendant might make?
Interim mandatory injunction
Interim payment
Interim prohibitory injunction
Extension of time to submit its defence
Security for costs
Security for costs
Correct
Correct – security for costs – because, if successful, a security for costs order would require the claimant to pay a sum of money into court (or by some other manner) to protect the defendant should it successfully defend the claimant’s case and be awarded costs. The defendant wants this protection as it has reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
The other options were incorrect: Interim payment is incorrect because that is an application made by a claimant (for an interim payment on account of damages which the defendant may be held liable to pay). Interim prohibitory injunction is incorrect because the defendant does not need an order from the court to require the claimant to refrain from doing an act which is causing irreparable or immeasurable damage to the defendant . Interim mandatory injunction is incorrect because the defendant does not need an order from the court to require the claimant to do an act to avoid causing irreparable or immeasurable damage to the defendant. Extension of time to submit its defence (CPR 3.1) is incorrect because the defendant has already filed its defence and so does not need extra time to do so.
The claimant and defendant are in dispute over which of them is the legal and beneficial owner of the voting shares in a company, Levison Limited (‘Levison’). Last week, the claimant obtained an interim injunction without notice, which prohibits the defendant from exercising the votes attached to these shares at a Levison shareholder meeting which is taking place next week. The claimant’s main argument for the injunction is that the defendant was intending to vote at the meeting in order to push through a resolution that will benefit the defendant’s expansion plans, but which would disadvantage the claimant. The defendant’s position is that, as the claimant actually owns a majority share in Levison aside from the disputed shares, the defendant’s vote would not have affected the outcome of the shareholder meeting. The with notice hearing is scheduled for tomorrow morning. Assuming the defendant’s statement is correct, which of the following outcomes is most likely at the with notice hearing?
The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act.
The injunction will continue because the defendant should still not be exercising the voting rights attached to the disputed shares.
The injunction will continue because injunctions granted without notice are always expressed to last until trial.
The injunction will be discharged at the eventual trial.
The injunction will be discharged and the court will accept an undertaking by the defendant not to do the act.
The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act.
Correct: if the defendant’s statement is correct, then the injunction will most likely be discharged at the with notice hearing. The principle that an injunction will not be obtained when it would serve no practical purpose (‘equity does not act in vain’) would most likely mean that the injunction would be discharged at the with notice hearing and the court would also consider whether or not to award damages to the defendant pursuant to the claimant’s undertaking in damages.
If the defendant’s statement is correct, the other options are less likely. The court is less likely to discharge the injunction at the eventual trial as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience; the trial may be some time away. The court is less likely to maintain the injunction on the basis that the defendant should still not be exercising the voting rights attached to the disputed shares as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience. This court is less likely to maintain the injunction on the basis that injunctions granted without notice are always expressed to last until trial as this reasoning is incorrect; in fact, injunctions made without notice will almost always last until the with notice hearing (rather than trial), at which point the court will decide whether they should continue. The court is less likely to discharge the injunction and accept an undertaking by the defendant not to do the act; on the facts the defendant has not offered an undertaking (and still intends to vote) and the court cannot force a party to offer an undertaking.
Your client is concerned that one of its competitors is about to launch a new product onto the market in infringement of your client’s patents and copyrights. Your client wishes to start civil proceedings for infringement and would like to apply for an interim injunction against the competitor to prevent the new product being launched. At the injunction hearing, if damages would not be an adequate remedy for your client, the applicant, what would the court consider next?
The court will next consider where the balance of convenience lies. Please revisit the American Cyamamid guidelines in this element.
The court will next consider whether the defence has a real prospect of success.
The court will next consider the merits of the case.
The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages.
The court will next consider whether there is a serious question to be tried.
The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages.
Correct
It is correct that the court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages. This is usually part of ‘step 2’ and if damages from the applicant’s undertaking would be an adequate remedy to the respondent, and if the applicant is financially able to satisfy any such undertaking, there are good reasons to grant an interim prohibitory injunction. Although the court may consider the other options at the injunction hearing, it is unlikely that they will be considered ‘next’ pursuant to American Cyanamid: The court will consider whether there is a serious question to be tried – the court would have already decided this step (step 1) before considering if damages are an adequate remedy because if this step cannot be met, the injunction will generally be refused. The court will consider where the balance of convenience lies – the court considers this step (step 3) if it cannot resolve an injunction application by finding the answer from step 2 (and, even though steps 2 and 3 are sometimes blurred, it would still be necessary for the court to consider whether the respondent would be adequately compensated before it can make any decision on the balance of convenience). The court will not separately consider whether the defence has a real prospect of success or the merits of the case at this stage: the court will consider whether there is a serious question to be tried as ‘step 1’, but after that, the key considerations are the adequacy of damages as set out above.
Which of the following statements is correct in relation to the applicant’s cross-undertaking in damages in an application for an interim injunction?
The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages.
The applicant’s cross-undertaking in damages can only be for the protection of the respondent
The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried
The applicant makes the cross-undertaking in damages to the respondent
The court can order an applicant to make a cross-undertaking in damages
The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages.
Correct – the grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages. The other options are incorrect: The applicant makes the cross-undertaking in damages to the respondent – no, it makes the cross-undertaking to the court. The court can order an applicant to make a cross-undertaking in damages - no, the court cannot order any party to make an undertaking so here it is subject to the willingness of the applicant. The applicant’s cross-undertaking in damages can only be for the protection of the respondent – no, the cross-undertaking can be for the benefit of others that have suffered damage by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction. It depends on what the court requires. The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried – no, the applicant’s cross-undertaking is usually considered as part of step 2 and sometimes 3 of the American Cyanamid. Serious question to be tried is step 1.
How many SRA principles are there are can you name them?
Rule of law; Confidence in profession ; Independence ; Integrity; Honesty; Diversity; Best interest
what are the consequences of not complying with the pre-action protocol?
costs and stay proceedings until pre-action is complied with
3 steps for court to issue claim form
dated
issue number
sealed
for which additional claims is the court’s permission needed
CPR 20.5 (counterclaim against the defendant and additional party) CHECK??
in what court could a personal injury claim of 40k start
county court
consequences if the claim form is not served within necessary time period and what to do if the party still wants to serve it
after the claim form is issued if not served within
- 4 months within the jurisdiction
- 6 months outside jurisdiction
then consequences: if time has expired then must issue a new claim form
can make an application to extend time for service if time has not expired
Which of the following statements best describes the costs rules of general application?
When deciding what costs order to make the court will have regard to three factors: the conduct of the party, the value of the claim and any settlement offers made.
The court has no discretion as to costs and is bound by the rule that the unsuccessful party will always pay for costs of the successful party.
The court has discretion as to costs but will adopt the starting position that the unsuccessful party pays the costs of the successful party only moving away from this if the conduct of the paying party makes it fair and just to do so.
The court has limited discretion as to costs and will always adopt the starting position that the unsuccessful party pays the costs of the successful party only moving away from this if the conduct of the receiving party makes it fair and just to do so.
The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party.
The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party.
Correct
This is correct. The court has discretion as to whether costs are payable, the amount of costs and when they are to be paid and the general rule on costs (CPR 44.2(2)) is correctly described in this answer. When making a costs order, the court will consider the conduct of both parties and not just the receiving party.
The defendant to a large negligence claim has recently been served with the claim form and particulars of claim. There is no specific pre-action protocol governing the matter but to date the defendant has tried to avoid litigation by providing a detailed letter of response to the initial letter of claim, complying with all requests for information and disclosing key documents relevant to the dispute. It has also suggested some form of alternative dispute resolution (‘ADR’) on three separate occasions. All of these invitations to engage in ADR have been rejected outright by the claimant with no explanation given. How will the court view the claimant’s conduct when exercising its discretion as to costs?
The court will expect the claimant to actively engage in ADR but will not consider a refusal to do so to fall under any consideration of party conduct when exercising its discretion on costs.
If the claimant goes on to win at trial the court is likely to penalise the claimant for its refusal to engage in ADR by rejecting outright any claim for costs incurred during the pre-action stage.
If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
If the defendant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
The court will not expect the claimant to actively engage in ADR and so it is unlikely there will be any costs consequences of its refusal should it go on to win at trial.
If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
Correct
This is correct. When exercising its discretion on costs the court will have regard to a number of factors contained within the rules in relation to what order to make (CPR 44.2(4)) and in relation to the amount of costs to be awarded (CPR 44.4(3)). One factor common to both of these decisions is that the court will have regard to the parties’ conduct. An example of party conduct that might have an impact on costs is that of an unreasonable refusal by one party to engage in ADR (and this refusal does appear to be an unreasonable refusal).
Which of the following statements best describes the qualified one way costs shifting regime (QOCS)?
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury which restricts the enforcement of costs against the claimant.
QOCS is the regime for the recovery of costs between parties in proceedings involving counterclaims for damages by the defendant to a personal injury claim which restricts the enforcement of costs against the defendant.
QOCS is the regime for the recovery of costs between parties involving claims for damages in respect of death and personal injury which prevents a costs order being made against a claimant.
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in excess of £100,000 in respect of death and personal injury which restricts the enforcement of costs against the claimant.
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury which restricts the enforcement of costs against the defendant.
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury which restricts the enforcement of costs against the claimant.
Correct
This is correct. The rules on QOCS (CPR 44.13 – 16) provide that a costs order made against the claimant can only be enforced without the permission of the court to the extent that it does not exceed the order for damages and interest made in favour of the claimant. However, if the claimant wins the case, or any aspect of it they may recover and enforce costs orders in the usual way.
Where costs are fixed by the CPR for a particular item, this means that…
…if the court awards costs for that item, the sum awarded will be capped at the sum set out in the CPR, unless the court orders otherwise.
…if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.
…a party is entitled to payment of those costs by the opponent, unless the court orders otherwise.
…if the court awards costs for that item, the sum awarded will be as set out in the CPR.
…if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.
Correct
Correct. The fixed costs regime applies unless the court orders otherwise. The fixed costs regime is about deciding how much costs should be paid if they are going to be paid, not whether costs should be paid.
If an application is due to be heard at 10am on Wednesday 5 November, when is the latest that a statement of costs (N260) can be filed and served in relation to that application?
10am on Tuesday 4 November
10am on Monday 3 November
4pm on Monday 3 November
4pm on Tuesday 4 November
10am on Tuesday 4 November
Correct
Correct. The statement of costs must be filed and served party not less than 24 hours before the time fixed for the hearing.
In which circumstances will costs be summarily assessed?
At the end of trials and interim hearings lasting not more than one day.
At the end of fast-track trials and at the end of interim hearings lasting not more than one day.
At the end of fast-track trials lasting not more than one day and at the end of interim hearings lasting not more than one day.
At the end of fast-track trials lasting not more than one day and at the end of interim hearings.
At the end of fast-track trials and at the end of interim hearings lasting not more than one day.
correct
A claimant makes a successful application to court to adduce evidence from a further witness of fact. The hearing of the application lasted for an hour and at the end of the hearing the judge ordered that costs be in the case. Which of the following statements best describes the effect of the costs order made by the judge?
The decision about who pays the costs of the interim hearing of the defendant’s application is put off to a later occasion.
The party in whose favour this order is made will recover the costs of the interim hearing from the other party regardless of who eventually wins at trial.
If the claimant is successful and receives an order that it should be entitled to its costs at the end of trial, it cannot include the costs of opposing the defendant’s application.
The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party.
If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of bringing its application.
The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party.
Correct
This is correct. The effect of an interim order of ‘costs in the case’ is that the party that gets its costs following the final hearing of the dispute will recover its costs of that interim hearing. Putting off costs until a later occasion (not necessarily final hearing) is known as ‘costs reserved’. Recovery of the costs following the hearing regardless of who wins at trial is known as ‘costs in any event’. A situation where a claimant is awarded costs at the end of trial but cannot include its costs of the interim hearing would be an order for the ‘defendant’s costs in the case’. A situation where a defendant is awarded costs at trial but the claimant does not have to pay the defendant’s costs of the interim hearing would be an order for the ‘claimant’s costs in the case’.
A claimant has just succeeded in its interim application to amend its budget in light of significant developments in the proceedings. The hearing of the application lasted five hours and involved complex discussions on quantum and the value of forensic evidence. At the end of the hearing the judge ordered the claimant’s costs in any event. Which of the following statements best describes the effect of this order on the assessment of costs?
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be.
Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place at a later date when the officer will look at the costs incurred and decide how much should be paid.
Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place immediately at the end of the hearing.
The judge will take the claimant’s statement of costs and unless it radically departs from the figures in the claimant’s budget the court will award those costs to be paid immediately or at the latest within 7 days of the order being made.
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing and then make a record of those costs so that they can be paid to the claimant following the final hearing of the dispute.
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be.
Correct
This is correct. Following a ‘costs in any event’ order at a hearing which has lasted less than one day the court will go on to summarily assess the claimant’s costs before deciding on an amount. The defendant must then pay these costs within 14 days of the costs order being made (CPR 44.7). It is the judge that will summarily assess the costs and not an authorised court officer. When summarily assessing costs the court will be primarily concerned with each party’s statement of costs and their respective submissions. The influence of the budget at this interim hearing will be less important than when the judge is deciding costs of the whole proceedings following the final hearing of the dispute.
incorrect
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing and then make a record of those costs so that they can be paid to the claimant following the final hearing of the dispute.
Incorrect
Incorrect: This is not the effect of a costs in any event order. Please make sure you review the information on summary assessment within this element and are familiar with when and how it applies (44PD9.1 and 9.2). You might also want to revisit the information on interim costs orders (44PD4.2).
Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place immediately at the end of the hearing.
Incorrect: It is the judge that will summarily assess the costs and not an authorised court officer. Please make sure you review the information on summary assessment within this element and are familiar with when and how it applies (44PD9.1 and 9.2).
A judge hearing a defendant’s application to extend the time for service of a defence has granted the defendant the full 28 day extension requested. In her judgment she is highly critical of the claimant for failing to agree to any extension and refers to aspects of the claimant’s conduct which have put the defendant in a difficult position in the proceedings so far. Given the above which of the following interim costs orders is the judge most likely to make.
The claimant to pay the defendant’s costs in any event
The defendant’s costs thrown away
No order as to costs
The defendant to pay the claimant’s costs in any event
Costs in the case
The claimant to pay the defendant’s costs in any event
Correct
This is correct. The judge has found in the defendant’s favour and is very critical of the claimant’s behaviour. The implication is that the judge has sympathy with the defendant and so is likely to award the costs it has incurred in bringing the application. The other options are not appropriate given the facts of the scenario. Costs thrown away relate to where a judgment or order is set aside, costs in the case would defer costs to final hearing and is less appropriate where the judge clearly favours one party’s position over the other and similarly no order as to costs ignores the fact that the judge is highly critical of the claimant’s conduct and sympathetic to the defendant’s position.
Which of the following is not an example of the court’s power to manage cases? a) Extend time to comply with the court’s order to file a witness statement by 1st June. b) Require a party to attend court. c) Require a party to change its legal representative due to high legal costs. d) Require a party to file a costs budget. e) Require a party to take a step in the proceedings to further the overriding objective.
Require a party to attend court.
Require a party to file a costs budget.
Require a party to change its legal representative due to high legal costs.
Require a party to take a step in the proceedings to further the overriding objective.
Extend time to comply with the court’s order to file a witness statement by 1st June.
Require a party to change its legal representative due to high legal costs.
Correct
Require a party to change its legal representative due to high legal costs is the correct answer as this is not an example of the court’s power to manage cases (CPR 3.1). The court will not interfere with the legal representative a party chooses. If the court considers that the legal representative is charging excessive legal costs, the court will address this when making orders as to the recovery of costs.
The other possibilities are all examples of the court’s power to manage cases: Extend time to comply with the court’s order to file a witness statement by 1st June. Require a party to attend court. Require a party to file a costs budget. Require a party to take a step in the proceedings to further the overriding objective.
When can a court strike out a defendant’s statement of case? Choose the best answer.
The defendant has failed to comply with a rule, practice direction or court order.
The defendant has not filed a defence.
The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial.
The defendant has not filed a counterclaim.
The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim.
The defendant has failed to comply with a rule, practice direction or court order.
Correct
Correct answer: the court can strike out a defendant’s statement of case if the defendant has failed to comply with a rule, practice direction or court order. Failure to comply with a rule, practice direction or court order is one of the grounds for strike out (CPR 3.4(c)). The others are (a) that the statement of case discloses no reasonable grounds from bringing or defending the claim and (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.
The defendant has not filed a defence is incorrect. This is a ground for default judgment (rather than strike out) (CPR 12.3). It is easy to confuse strike out, summary judgment and default judgment. The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial is incorrect. These are the grounds for summary judgment (rather than strike out) (CPR 24.2). It is easy to confuse strike out, summary judgment and default judgment. The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim is not the best answer. It is unlikely to amount to one of the grounds for strike out, for example, (a) where the statement of case discloses no reasonable ground for bringing or defending a claim. To fall within this ground it is more likely that a defendant would have only filed a bare denial with no other information. The defendant has not filed a counterclaim is incorrect; the defendant is not obliged to file a counterclaim in addition to a defence and, indeed, may not have a counterclaim against the claimant.
incorrect
The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial is incorrect. – These are the grounds for summary judgment (rather than strike out) (CPR 24.2). It is easy to confuse strike out, summary judgment and default judgment. Please revisit this element with particular reference to the court’s power to strike out.
The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim.
Incorrect
The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim is not the best answer. It is unlikely to amount to one of the grounds for strike out, for example, (a) where the statement of case discloses no reasonable ground for bringing or defending a claim. To fall within this ground it is more likely that a defendant would have only filed a bare denial with no other information. Please revisit this element with particular reference to the court’s power to strike out.
Match the ground for striking out with the correct example of it
The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
The statement of case discloses no reasonable ground for bringing or defending the claim
There has been a failure to comply with a rule, practice direction or court order
The claimant refuses to allow inspection of a document which has been disclosed and which is crucial to the case.
The particulars of claim allege that “The Defendant has been conducting his business in a way which has caused me to lose money, in excess of £5,000, and he knew that would happen”.
The claim form and particulars of claim set out a breach of contract claim against the defendant. The claimant issues this claim 5 times simultaneously.
The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
The claim form and particulars of claim set out a breach of contract claim against the defendant. The claimant issues this claim 5 times simultaneously.
The statement of case discloses no reasonable ground for bringing or defending the claim
The particulars of claim allege that “The Defendant has been conducting his business in a way which has caused me to lose money, in excess of £5,000, and he knew that would happen”.
There has been a failure to comply with a rule, practice direction or court order
The claimant refuses to allow inspection of a document which has been disclosed and which is crucial to the case.
Where a CPR / PD / court order requires a party to do something and stipulates the consequences of failing to comply, by how long can the parties extend the deadline?
28 days (provided this does not put a hearing date at risk).
There is no limit (provided the parties do not put a hearing date at risk).
The parties cannot extend such a deadline.
14 days (provided this does not put a hearing date at risk).
28 days (provided this does not put a hearing date at risk).
correct
What are the different stages of the approach to relief from sanctions as set out in Denton?
Stage 1
Identify and assess the seriousness and significance of the failure to comply – if neither serious nor significant, relief should be granted.
Stage 2
Consider why the default occurred
Stage 3
Evaluate all the circumstances of the case with particular weight to the need to conduct litigation efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders
The claimant files its costs budget at court 60 minutes late. On the day of filing, the claimant’s solicitor had an accident on the way in to work and, although uninjured, had to attend hospital for several hours to get checked out. Once released from hospital, the solicitor filed the costs budget. The solicitor applies for relief from sanctions the following day. What factor is most likely to influence the court when considering whether to grant the relief from sanctions?
The breach must be punished to enforce compliance with rules, practice directions and court orders.
The breach is serious and significant.
The default occurred without good reason.
The breach prevents the case being conducted efficiently and at proportionate cost.
The breach is not serious or significant.
The breach is not serious or significant.
Correct
The best answer is that the breach is not serious or significant. The case of Denton requires the court to look at three stages as part of its application of the provisions in relation to relief from sanctions (CPR 3.9). The first stage is to identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order. If the breach is neither serious nor significant, then relief should be granted. Here, the breach is not serious or significant and so relief from sanctions will usually be granted and it will not be necessary for the court to spend much time on the second and third stages.
The default occurred without good reason is not the best answer. The second stage of the Denton test is that if the breach is serious and significant, the court will consider why the default occurred. As stage one is satisfied, the court does not need to consider the second stage in any depth. In any event, here, there is good reason for the default.
The breach prevents the case being conducted efficiently and at proportionate cost is not the best answer. This is part of the third stage of the Denton test and deals with CPR 3.1(a). As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(a) does not point towards the refusal of relief as the breach did not prevent the litigation from being conducted efficiently and at proportionate cost, and did not imperil any further hearing date or otherwise disrupt the conduct of the litigation.
The breach must be punished to enforce compliance with rules, practice directions and court orders is not the best answer. As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(b) does not point towards the refusal of relief as the breach is near the bottom of the range of seriousness.
The breach is serious and significant is not the best answer. It is unlikely that the court would find this breach serious and significant.
Putting aside personal injury claims / tenancy claims, the financial limit on the small claims track is:
£5,000
£25,000
£15,000
£50,000
£10,000
£10,000
Correct. Well done! This is the correct limit (CPR 26.6).
Once Directions Questionnaires have been filed, the Court will always order that there be an allocation hearing. True or false?
False
True
False
Correct
Correct. The court will only order an allocation hearing if it considers it necessary (CPR 26.5(4)).
When should the parties file and serve a Directions Questionnaire?
At least 3 days prior to the Case Management Conference.
No later than the date specified on the Notice of Proposed Allocation.
At any point after service of the Defence but prior to the hearing of a Case Management Conference
At the same time as service of the Defence.
No later than the date specified on the Notice of Proposed Allocation.
Correct
Correct. After service of the Defence, the court will provisionally decide the track most suitable for the claim and issue a notice of proposed allocation. This will require the parties to file and serve Directions Questionnaires and will include the date by which this must be done (CPR 26.3(6)).
You are a solicitor at Price Prior and you act for Exclusive Builders Ltd (‘EBL’). EBL are claiming £27,500 in damages, interest and costs for breach of contract and negligence against Stanleys Steel Plc (‘SSP’) whom they employed to undertake the specialist steel work required in the construction of a large, state-of-the-art conference centre. The total amount of damages claimed includes £2,000 in interest and £1,580 in costs. SSP’s primary case is there has been no breach of contract or negligence; it has also pleaded that EBL is contributory negligent and the claim should be reduced by £15,000 as a result. EBL has appointed two experts; a surveyor, Mr Singh and quantum expert, Mr Bell. Similarly, SSP has appointed two experts Mr Smith, a surveyor and Mr Pagne, a quantum expert. Only Mr Bell and Mr Pagne will give oral evidence at trial. Trial is expected to last one day. What is the ‘normal track’ for this claim?
The normal track is the fast track.
The normal track is the multi-track because it is over £25,000.
The normal track is the multi-track because the value of the claim for allocation purposes is £42,500.
The normal track is the multi-track because 2 experts have been appointed by each party.
The normal track is the fast track.
Correct
Correct! Well done. The claim is for under £25,000. When assessing financial value for allocation purposes, the court will disregard any claim for interest, costs and any contributory negligence (CPR 26.8(2)). The maximum value for this claim for allocation purposes is therefore £23,920. The fast track is the normal track for claims of this value only where the trial is estimated to be one day or less and where oral expert evidence is limited to one expert per party in relation to any expert field and expert evidence is limited to two different expert fields (CPR 26.6(5)) – the trial length and evidence are so limited in this case.
incorrect
The normal track is the multi-track because it is over £25,000.
Incorrect. When assessing financial value for allocation purposes, the court will disregard any amount not in dispute ie any claim for interest, costs and any contributory negligence (CPR 26.8(2)). Please revisit this element.
The normal track is the multi-track because 2 experts have been appointed by each party.
Incorrect. The expert evidence does not point to the multi-track. Please revisit this element.
The normal track is the multi-track because the value of the claim for allocation purposes is £42,500.
Incorrect. When assessing financial value for allocation purposes, the court will disregard any claim for interest, costs and any contributory negligence (CPR 26.8(2)). Please revisit this element.
In relation to a claim allocated to the small claims track, the general rule is that even if successful at trial a party…
…cannot recover costs from an opponent.
…can only recover limited fixed costs, court fees, counsel’s charges and witness expenses from an opponent.
…can only recover limited fixed costs, court fees and witness expenses from an opponent.
…can only recover limited fixed costs from an opponent.
…can only recover limited fixed costs, court fees and witness expenses from an opponent.
correct
How are documents / statements from witnesses dealt with on the small claims track?
Standard disclosure is the ordinary order, to take place 28 days before trial. Witness statements are not used on the small claims track.
There is no order for disclosure or exchange of witness statements. Parties are required file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing.
Standard disclosure is the ordinary order, to take place 28 days before trial. Witness statements are exchanged 14 days before trial in relation to any witness which is not attending the hearing. Witnesses attending the hearing do not need to provide statements in advance.
There is no order for disclosure or exchange of witness statements. Parties are required file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing.
Correct. This is the normal direction for a small claims track dispute.
Match the direction to the deadline in relation to the standard fast track directions (which the court can alter if it wishes). The deadline is expressed as the number of weeks after notice of allocation.
Disclosure
Exchange of witness statements
Exchange of experts’ reports
Filing of pre-trial checklists
Trial date / period
Disclosure
4
Exchange of witness statements
10
Exchange of experts’ reports
14
Filing of pre-trial checklists
22
Trial date / period
30
When does the disclosure report need to be filed (assuming one is needed)?
In accordance with the directions made at the CMC
Not less than 14 days before the first CMC
Not less than 21 days before the first CMC
Not less than 7 days before the first CMC
With the directions questionnaire
Not less than 14 days before the first CMC
Correct. (CPR 31.5)
The parties must file agreed / proposed directions with the court….
At least 7 days before any CMC
At least 14 days before the first CMC
At least 14 days before any CMC
At least 7 days before the first CMC
At least 7 days before any CMC
Correct. The parties should attempt to agree them first. (CPR 29.4)
The main purpose of a CMC is to…
Ensure the parties and their representatives are considering settlement.
Determine directions for the future conduct of the case.
Determine any issues which the parties wish to be determined.
Review the statements of case and ensure they are clear and complete.
Determine directions for the future conduct of the case.
Correct. Whilst the court will encourage settlement, and may assist with other issues, the court’s primary concern is directions (CPR 29.2(1)).
To which one of the following would the costs management regime likely apply, assuming each claim was commenced 2 months ago:
A breach of contract claim in the High Court, seeking £25 million.
A negligence claim in the High Court, seeking sums to be assessed, but where the claim states that the value is £10 million or more.
A debt claim in the County Court, when the debt is £24,000.
A personal injury claim in the County Court valued at £45,000.
A personal injury claim in the County Court valued at £45,000.
Correct
Correct. This would appear to be a multi-track claim and, on these facts, does not fall into any of the exceptions to the costs management regime.
In a claim valued at just over £100,000, the first CCMC has been listed for Friday 30 November. When does the costs budget need to be filed?
Thursday 8 November
Thursday 22 November
Friday 23 November
Friday 9 November
Thursday 8 November
Correct
Correct. Where the stated value of the claim is £50,000 or more, the budget must be filed not less than 21 days before the first CCMC. Counting the time correctly takes you to Thursday 8 November.
incorrect
Friday 9 November
Incorrect
Incorrect. It appears that you know that where the stated value of the claim is £50,000 or more, the budget must be filed not less than 21 days before the first CMC. However, you have counted the time incorrectly. Revisit the counting time material within the element ‘counting time’.
Parties should only use page 1 of the Precedent H if:
The monetary value of the claim is less than £25,000 or if the party’s budgeted costs do not exceed £10,000.
The monetary value of the claim is less than £25,000 and if the party’s budgeted costs do not exceed £10,000.
The monetary value of the claim is less than £50,000 or if the party’s budgeted costs do not exceed £25,000.
The monetary value of the claim is less than £50,000 and if the party’s budgeted costs do not exceed £25,000.
The monetary value of the claim is less than £50,000 or if the party’s budgeted costs do not exceed £25,000.
correct
Budgets do not include:
Disbursements.
Solicitor’s charges.
Estimated future costs.
Incurred costs.
Estimated opponent’s costs.
Estimated opponent’s costs.
Correct. Your opponent will set out their incurred and estimated costs in their own budget.
In a claim valued at just over £100,000, the first CMC has been listed for Friday 30 November. By when does the budget discussion report need to be filed?
On Friday 23 November at the latest.
On Friday 16 November at the latest.
On Thursday 15 November at the latest.
On Thursday 22 November at the latest.
On Thursday 22 November at the latest.
Correct
Correct. You have correctly understood when the budget discussion reports must be filed, and you have counted time correctly.
Assume that budgets have been filed. Which of the following most accurately states when the court will make a costs management order (CMO)?
The court will only make a CMO if it concludes that the litigation will not be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.
The court will make a CMO unless it is satisfied that the budgeted costs are in accordance with the overriding objective.
The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.
The court will make a CMO in all cases (to which the costs management regime applies) in order to ensure that the litigation is conducted justly and at proportionate cost.
The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.
Correct. This is what the relevant rule states (CPR 3.15(2)).
incorrect
The court will make a CMO in all cases (to which the costs management regime applies) in order to ensure that the litigation is conducted justly and at proportionate cost.
Incorrect. Revisit this element and/or CPR 3.15.
The court will make a CMO unless it is satisfied that the budgeted costs are in accordance with the overriding objective.
Incorrect. Revisit this element and/or CPR 3.15.
Where a court has decided to make a Costs Management Order (CMO), how does it deal with a part of a party’s budget in relation to estimated costs which the other party has agreed (as recorded in the relevant Budget Discussion Report)?
The CMO records that the relevant part of the budget has been agreed, unless the court wishes to substitute its own figure.
The CMO records that the relevant part of the budget has been agreed. The court will not change the agreed figure.
The court will take into account that the relevant part is agreed when deciding what would be an appropriate figure for that part CMO.
The fact that a party has agreed part of the other party’s budget is not relevant to the exercise that the court carries out when making a CMO.
The CMO records that the relevant part of the budget has been agreed. The court will not change the agreed figure.
Correct. The court cannot interfere with agreed parts of the budget: if it objects to the figure agreed, the court is likely to record a comment to that effect which a subsequent judge might take into account when it comes to assessment (CPR 3.15).
If a judge is assessing costs on the standard basis at the conclusion of a matter, what impact does a Costs Management Order (CMO) have on her task?
The judge will cap the costs at the figures in the budget.
The CMO is not relevant when it comes to assessing costs.
The judge will assess the costs at the figures in the budget, unless the judge considers it unjust to do so.
The judge will cap the costs at the figures in the budget, unless there is good reason not to do so.
The judge will cap the costs at the figures in the budget, unless there is good reason not to do so.
Correct
Correct. This is what the relevant rule states (CPR 3.18), when combined with the general principle that a party cannot recover a greater sum for costs from an opponent than it has in fact incurred.
A party fails to file a budget by the deadline. What is the default consequence?
The court will determine what figures should have been in the budget.
They will be treated as having filed a budget providing nothing for the costs of the litigation.
They will be treated as having filed a budget containing sums equal to those proposed by the other party.
They will be treated as having filed a budget comprising only the applicable court fees.
They will be treated as having filed a budget comprising only the applicable court fees.
Correct
Correct! Well done (CPR 3.14).
An applicant makes an application for security for costs with a return date of Friday 22 October. What is the latest date that the applicant might be permitted to serve a copy of the application notice and supporting documentation on the respondent (without further order from the court)?
Monday, 18 October.
Tuesday, 19 October
Friday, 15 October
As soon as possible before the hearing
Thursday, 21 October
Monday, 18 October.
Correct
Correct: if an applicant makes a with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as possible but not less than 3 clear days before the hearing (CPR 23.7). The other options were not correct: * As soon as possible before the hearing – this is only part of the rule on the service time limit in this situation (CPR 23.7). * Tuesday, 19 October. This is not 3 ‘clear’ days before the hearing. * Friday, 15 October. This is not the correct time limit for standard with notice interim applications (CPR 23.7). * Thursday, 21 October (you could be confusing the application notice and evidence with the statement of costs, which can be served 24 hours before the hearing).
incorrect
As soon as possible before the hearing
-key word: latest date!
Incorrect. The answer is not ‘as soon as possible before the hearing’ – this is only part of the rule on the service time limit in this situation (CPR 23.7). Please revisit the interim applications and security for costs elements and, if necessary, the counting time element.
For a summary judgment application, what is the latest date by which the applicant must serve the application documentation on the respondent if the hearing is to take place on Friday 22 October?
Monday 18 October
Friday 8 October
Friday 15 October
Thursday 7 October
Thursday 14 October
Thursday 7 October
Correct
Correct – the applicant must give at least 14 days’ notice of the date fixed for the hearing (CPR 24.4(3)).
A defendant makes an application for security for costs against the claimant two weeks before the trial of the claim. The claimant opposes the application.
The claimant company is based overseas in the USA with no assets or operations elsewhere. It has been financially solvent for many years holding both liquid and illiquid assets (as publicly available accounts across the years have shown), and has a strong claim against the defendant.
What is the most accurate description of the likely outcome of the defendant’s security for costs application?
The defendant is likely to be successful in its application because the claimant has the ability to comply with any order made for security for costs.
The defendant is likely to be successful in its application because it is not using the application to stifle the claimant’s claim.
The defendant is likely to be unsuccessful in its application because there is no reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
The defendant is likely to be unsuccessful in its application because of its delay in making the application.
The defendant is likely to be successful in its application because the claimant is resident out of the jurisdiction (but is not resident in a state bound by the Hague Convention 2005).
The defendant is likely to be unsuccessful in its application because of its delay in making the application.
Correct. Although the defendant will likely be able to establish that one of the prescribed conditions for security for costs exists (CPR 25.13(2)(a)) and that the claimant has the ability (eg funds) to pay into court or to give a guarantee, the court is likely to refuse the application due to the application of the further discretionary factors . The defendant has left it until just two weeks before the trial to make the application when the facts justifying the order have been known from the outset ie that the claimant is out of the jurisdiction and in a location where enforceability of the costs order will be difficult, and that it has the funds to pay security. An application for security for costs should be made promptly and as soon as facts justifying the order are known and the court is likely to refuse to exercise its discretion to make the order on the basis that there has been a significant delay in making the application.
incorrect
The defendant is likely to be successful in its application because the claimant is resident out of the jurisdiction (but is not resident in a state bound by the Hague Convention 2005).
Incorrect
Incorrect. Please review your materials on security for costs. You need to know the test which includes establishing one of the prescribed conditions for security for costs (CPR 25.13) and the application of the court’s discretion. You need to be able to apply these factors accurately to the case facts given so that you can indicate the likely outcome of the application and the basis for that outcome. This option mentions the correct prescribed condition but omits to consider the discretionary factors that also need to be applied.
The defendant is likely to be unsuccessful in its application because there is no reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
Incorrect. Please review your materials on security for costs. You need to know the test which includes establishing one of the prescribed conditions for security for costs (CPR 25.13) and the application of the court’s discretion. You need to be able to apply these factors accurately to the case facts given so that you can indicate the likely outcome of the application and the basis for that outcome. This option mentions just one discretionary factor and the overall application to the facts given is likely wrong, leading to an incorrect conclusion.
The defendant is likely to be successful in its application because the claimant has the ability to comply with any order made for security for costs.
Incorrect. Please review your materials on security for costs. You need to know the test which includes establishing one of the prescribed conditions for security for costs (CPR 25.13) and the application of the court’s discretion. You need to be able to apply these factors accurately to the case facts given so that you can indicate the likely outcome of the application and the basis for that outcome. This option mentions just one discretionary factor and the overall application to the facts given is likely wrong, leading to an incorrect conclusion.
A claimant has commenced proceedings seeking in the region of £200,000 in relation to personal injuries. A defence has been filed defending the claim in full. It is clear that the claimant will be awarded at least £50,000 in relation to the injuries at trial, but the prospects of recovering more than this are unclear. The claimant needs to make adaptations to their house to cope with their injuries, but does not have the money to do so. Does an application for an interim payment by the claimant have good prospects of success?
Yes, because the claimant does not have any money to make the necessary adaptations.
No, because the defendant has not admitted liability.
Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
No, because the claimant has not obtained judgment against the defendant.
No, because the prospects of recovering the majority of the claim are uncertain.
Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
Correct. CPR 25.7(1) provides that a condition giving the court jurisdiction to award an interim payment is that the court “is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant”, and this is clearly satisfied if ‘it is clear that the claimant will be awarded at least £50,000’ at trial. An admission of liability or having already obtained judgment are alternative conditions, but they are not necessary ones, so the absence of these does not prevent an application for an interim payment. It does not matter that the very good prospects only relate to 25% of the sum claimed, as long as this is still a substantial amount (but note that the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment – CPR 25.7(4)). The fact that the claimant does not have any money to make the necessary adaptations is not the main factor giving the application good prospects of success.
A wealthy supermarket chain wants to obtain an interim injunction against a car dealer possessing the neighbouring land to prevent the car dealer from parking cars on what the supermarket considers to be its own land. The claim has a 60% chance of success. If the car dealer goes ahead with this parking, the supermarket will suffer losses of approximately £400 for each day of infringement, being the cost of the supermarket renting the required space from a different neighbouring property instead. The car dealer has substantial assets and available cash. Which of the following best explains why an application for an interim injunction is likely to fail?
Damages will be an adequate remedy for the supermarket if the claim succeeds.
The claim does not have sufficient prospects of success.
The defendant has sufficient assets to pay the costs of opposing the application.
The parking complained of has not taken place yet.
The supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it.
Damages will be an adequate remedy for the supermarket if the claim succeeds.
correct
The approach the court takes to determining whether to grant an interim injunction stems from the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 and in overview is: Step 1 - Is there a serious question to be tried? If not, an interim injunction is unlikely to be granted. But in this case, the claim has 60% prospects of success, so there is clearly a serious question to be tried, and it would be wrong to say that this claim does not have sufficient prospects of success. Step 2 - Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? An injunction is unlikely to be granted unless damages would be inadequate for the applicant. In this case, there is nothing to suggest damages would be inadequate, and this is why an interim injunction is unlikely to be obtained. Examples of situations where damages would be inadequate are where the harm is irreparable or impossible to calculate – not the case here. If damages were to be inadequate for the applicant, you would consider the situation from the respondent’s point of view – is it possible to compensate the respondent if it turns out that an injunction should not have been granted (and could the applicant honour an undertaking to that effect)? This should be possible here from the facts we are given – the applicant appears to have sufficient money to honour an undertaking to pay the respondent damages and so it would be wrong to say that the supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it. Step 3 - Where does the balance of convenience lie? Given the conclusions reached in relation to Step 2, this step is not very relevant. The other answers are wrong because interim prohibitory injunctions are ideal where the behaviour complained of has not yet taken place and because the respondent having sufficient assets to pay the costs of opposing the application does not that mean that it has good grounds to oppose it.
When might the court order the parties to give disclosure?
When giving directions on allocation, at a case management conference, or on a party’s application.
At a case management conference.
On a party’s application.
At a case management conference or on a party’s application.
When giving directions on allocation.
When giving directions on allocation, at a case management conference, or on a party’s application.
Correct. These are all possibilities.
Max has brought a claim against Bill following a road traffic accident. The damages for Max’s injuries are estimated at £35,000. The court has allocated the claim to the multi-track and listed a CMC. When must Max file and serve his disclosure report?
At least 28 days before the CMC.
At least 14 days before the CMC.
At least 7 days before the CMC.
Max is not obliged to file or serve a disclosure report.
At least 21 days before the CMC
Max is not obliged to file or serve a disclosure report.
Correct. There is no obligation to file and serve a disclosure report in a personal injury claim.
incorrect
At least 14 days before the CMC.
Incorrect. Check you have understood the type of cases where a disclosure report is required. Revisit this element and/or CPR 31.
Kelly has brought a claim against Shazia for loss of profits following a breach of contract by Shazia. The claim is valued at £65,000. The court has allocated the claim to the multi-track and listed a CMC. When must Kelly file and serve her disclosure report?
At least 28 days before the CMC.
At least 21 days before the CMC
Kelly is not obliged to file or serve a disclosure report.
At least 14 days before the CMC.
At least 7 days before the CMC.
At least 14 days before the CMC.
Correct. (CPR 31.5(3)).
The judge in a multi-track case is likely to consider at the first CMC…
What type of disclosure order, if any, to make.
Whether or not to order standard disclosure.
Whether or not to order specific disclosure.
What type of disclosure order to make.
Whether the parties have complied with their disclosure obligations.
What type of disclosure order, if any, to make.
Correct. (CPR 31.5).
incorrect
What type of disclosure order to make.
Incorrect. The court does not have to make any order for disclosure. Reconsider this element and/or CPR 31.5.
What is the usual order made in relation to disclosure in a claim allocated to the fast track?
Disclosure of unknown adverse documents.
Standard disclosure.
The parties must file and serve documents they intend to rely on 14 days before the final hearing.
No order for disclosure.
There is no ‘usual order’.
Standard disclosure.
Correct – see the standard fast track directions (PD28).
The approach recommended in this element for considering what a party should disclose under an order for standard disclosure is to consider…
Is it a document, is it or was it in the party’s control, does the party wish to rely on it?
Is it a document, does it fall within the test for standard disclosure (CPR 31.6)?
Is it a document, is it or was it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?
Is it a document, is it or was it in the party’s control, does it fall within a reasonable search (CPR 31.7)?
Is it a document, is it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?
Is it a document, is it or was it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?
Correct. This is the approach recommended in this element.
Which of the following is not a document?
A text message.
Information stored on a computer about when a document was created, and who by.
A voicemail.
A phone number memorised by one of the parties.
An email.
A phone number memorised by one of the parties.
Correct
Correct. See the definition of document (CPR 31.4). The other answers are all documents - information stored on a computer about when a document was created, and who by, is also included – this is called ‘meta data’.
Which of the following falls outside of the concept of ‘control’ within the disclosure rules (CPR 31.8) as far as Party X is concerned?
A document in the possession of a witness who is supporting Party X.
A document which was destroyed in a fire at Party X’s premises.
A document obtained by Party X’s solicitor to be used as evidence in Party X’s case.
A document held by a director of Party X in his capacity as a director of Party X.
A document in the possession of a witness who is supporting Party X.
Correct. It may be that this will be provided to Party X if Party X asks for it, and at that point it would become in Party X’s control. However, until that happens, it is not within the meaning of ‘control’ within the disclosure rules (CPR 31.8). The other documents are or were all in Party X’s control. Party X’s director would hold documents like the one described as agent for Party X. Party X would have a right to inspect / take possession of a document obtained by its own solicitor for use as evidence.
Which of the following is not prescribed as a relevant factor when deciding the reasonableness of a search for the purposes of standard disclosure (CPR 31.7)?
The resources of the party required to carry out the search.
The significance of any document which likely to be located during the search.
The ease and expense of retrieval.
The number of documents involved.
The nature and complexity of the proceedings.
The resources of the party required to carry out the search.
Correct
Correct. This is not stated in the rules as a relevant factor, but the court can still take it into account if it thinks it is appropriate to do so eg under the overriding objective. The list of factors in the rules (CPR 31.7) is not a list of all possible relevant factors.
The CPR lists 3 exceptions to the general right to inspect a document which has been disclosed. Which of the following IS NOT one of them?
Allowing inspection would be disproportionate.
It would be unreasonable to have to search for the document.
The document is no longer in the disclosing party’s control.
The disclosing party has a right / duty withhold inspection (eg it is privileged).
It would be unreasonable to have to search for the document.
Correct. This is relevant to whether the document should be disclosed in the first place, but is not listed as an exception to the right to inspect (CPR 31.3).
A company is in involved in litigation and has been obliged to disclose management accounts. Within the accounts are figures relating to directors’ salaries which are not relevant to the dispute and which are confidential. Which of the following is correct in relation to inspection and redaction of the accounts?
Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive.
Inspection of the accounts must be permitted. The confidential figures can be redacted because they are commercially sensitive.
Inspection of the accounts need not be permitted. The issue of redaction does not arise.
Inspection of the accounts need not be permitted because redaction is not practically possible.
Inspection of the accounts must be permitted. The commercially sensitive figures can be redacted because they are privileged.
Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive.
Correct. You have correctly understood that redaction of commercially sensitive parts of a document is only permitted if those parts are irrelevant or privileged.
The maxim ‘once privileged, always privileged’ encapsulates which legal principle in relation to privilege?
If privilege is established in relation to one type of document (for example, letters from a solicitor to a client) then it is established in relation to all documents in the same category (ie all letters from the solicitor to the client).
If a document is privileged in relation to disclosure, it will be privileged in relation to inspection.
If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.
If a document is privileged, then that privilege cannot later cease / be lost as a result of actions of the disclosing party.
If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, if the two sets of proceedings concern substantially the same subject matter.
If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.
correct
You are a litigation solicitor at Price Prior. You are instructed by Janet McCormack in relation to a claim she has against Dockland Removals Limited (“Docklands”). Docklands’ solicitor phones you a day before his client’s defence is to be served and asks for an extension of time of 14 days to file and serve its defence. You take instructions from your client who agrees to the extra time. You then phone up Docklands’ solicitor to let them know that the extension of time has been agreed. You make a note on one sheet of paper of the three conversations a) with Docklands’ solicitor, b) with your client, Janet McCormack and c) with Docklands’ solicitor again. The case comes to the disclosure stage and an order for standard disclosure is made, and you conclude that the sheet of paper must be disclosed. Is the sheet or any part of it privileged from inspection?
The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged.
The sheet of paper is not privileged as the dominant purpose of the creation of the piece of paper is to record a note of a telephone conversation with the other side’s solicitor which is not privileged.
No part of the sheet of paper is privileged as its contents deal with the conduct of the case
The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged.
Correct
Correct. The record of the conversation between solicitor and client will be subject to litigation privilege and/or legal advice privilege. The rest of the sheet of paper is not privileged. The dominant purpose test is not really relevant here: we are not looking at a single communication created for several purposes, which is when the ‘dominant purpose’ test would be useful. Here, we have distinct communications, each with its own clear purpose, and they can effectively be dealt with separately. In practical terms, this means letting the other side see the sheet of paper, but with the record of the conversation between solicitor and client ‘redacted’ ie hidden. Redaction is explained in the element ‘Inspection’.
incorrect
The sheet of paper is not privileged as the dominant purpose of the creation of the piece of paper is to record a note of a telephone conversation with the other side’s solicitor which is not privileged.
Incorrect
Incorrect. The dominant purpose test is not really relevant here: we are not looking at a single communication created for several purposes, which is when the ‘dominant purpose’ test would be useful. Here, we have distinct communications, each with its own clear purpose, and they can effectively be dealt with separately. Revisit this element.
You are a solicitor at Price Prior and you act for Elizabeth Jones (‘EJ’). EJ has brought proceedings against Terry Val (‘TV’) for personal injury she sustained to her back as a result of a car crash she had with him in June of this year. You have drafted the Particulars of Claim and at paragraph 4 you state that Ms Jones has not sustained any previous injuries to her back prior to this accident. However, during your investigation of this matter, you come across a note from a doctor in Tanzania. The note shows that 12 months before the accident occurred, EJ sustained an injury to her back whilst climbing Mount Kilimanjaro. EJ had failed to report this to her British GP. The matter proceeds to disclosure and you include this note in the List of Documents and send the list for approval to your client (standard disclosure has been ordered). EJ telephones you the next day and says that under no circumstances should TV see this document. Which one of the following statements correctly describes the status of this document?
The doctor’s note needs to be disclosed, but inspection can be refused because legal advice privilege applies.
The doctor’s note must be disclosed and inspection permitted
The doctor’s note need not be disclosed, so the question of inspection does not arise.
The doctor’s note needs to be disclosed, but inspection can be refused because litigation privilege applies.
The doctor’s note must be disclosed and inspection permitted
Correct. The document is in the client’s control and is potentially adverse to the client, and therefore must be disclosed. No privilege applies - litigation was not reasonably in prospect at the time the note was written and neither does it meet the test for legal advice privilege (or any other privilege).
You are a trainee in the litigation department at Price Prior. You attended and took notes at the case management conference in High Court proceedings issued against your client, Robinson Asset Management Limited (“RAM”) by Lawton Holdings Plc (“LH”). The case management conference was attended by you, your supervising partner, a representative from your client, RAM, counsel for your client, and also by a representative of LH, a partner and an associate solicitor from its representing solicitors (a firm called Taylor Dockett LLP), and counsel. The partner from Taylor Dockett solicitors has contacted you to say that unfortunately owing to an IT problem, they have lost the notes they made of the meeting and they have requested a copy of your notes. You believe that even if the court orders standard disclosure you are not obliged to provide Taylor Dockett with a copy of your notes because they are covered by litigation privilege. Is this true or false?
False
True
False
Correct. Pursuant to the case of Parry v Newsgroup Newspapers, a solicitor’s attendance note of a conversation between parties (ie between the solicitors for each party normally), or what happens at court, is not privileged since, notwithstanding that the note is a communication, there is no confidentiality in notes of matters at which both sides are present. Therefore it is likely that you will have to provide a copy of your notes as part of the disclosure and inspection stage of proceedings.
Your opponent writes to you by a letter clearly marked ‘without prejudice save as to costs’. Can you show that document to the court?
Yes, but only on the question of costs.
Yes.
No.
It depends on the content of the letter
It depends on the content of the letter
Correct
Correct. If the letter is a genuine attempt at settlement, then it will be privileged, and can only be shown to the court when it comes to costs. If it is not a genuine attempt at settlement, then it is unlikely to be privileged at all. The fact that the document is labelled a particular way is not conclusive.
An order for specific disclosure is an order that a party must….
Search for documents and/or disclose specified documents.
Search for documents, disclose specified documents and/or allow inspection of specified documents.
Disclose specified documents.
Search for documents.
Search for documents and/or disclose specified documents.
Correct
Correct. (CPR 31.12(2))
incorrect
Search for documents, disclose specified documents and/or allow inspection of specified documents.
Incorrect. This is too broad. Revisit the opening pages of this element.
An order for specific disclosure can be made…
At any time after proceedings have been issued
At any time before proceedings have been issued.
At any time before or after proceedings have been issued.
At any time after a disclosure order has been made and the time for compliance with that order has passed.
At any time after proceedings have been issued
Correct
Correct! Well done. An order for specific disclosure (CPR 31.12) can be made at any time after proceedings have been issued. Before proceedings, pre-action disclosure (CPR 31.16) would instead be considered.
Which of the following IS NOT required before the court is able to make an order for pre-action disclosure?
The applicant is also likely to be a party to those proceedings
Disclosure of the documents is proportionate to the sums at stake in the proceedings.
The respondent is likely to be a party to subsequent proceedings
Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs
If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks
Disclosure of the documents is proportionate to the sums at stake in the proceedings.
Correct
Correct. This is not required before the court is able to make an order for pre-action disclosure. Although it is not a requirement, it would be a relevant consideration, although note also that the respondent can be compensated for costs of compliance by a suitable costs order (as explained in this element) and that proportionality is about more than just the sums in dispute (consider also the complexity of the dispute etc). All the other answers are required by the rules (CPR 31.16) before the court may make an order for pre-action disclosure. Note that even if all these factors are present, the court still has a discretion as to whether to order disclosure – it is not obliged to do so.
One of the prescribed conditions that must be satisfied before the court has a discretion to order non-party disclosure (CPR 31.17) is:
disclosure of the documents sought is necessary in order to save costs.
disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs.
disclosure of the documents is necessary to avoid proceedings, encourage settlement or allow the proceedings to be conducted more efficiently.
disclosure of the documents sought is necessary because the documents cannot be obtained from a party.
disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs.
Correct
Correct – well done! Looking at the other answers: whether the documents can be obtained from a party (rather than non-party) is a relevant consideration, but does not form part of any of the conditions that must be satisfied.
A Norwich Pharmacal order can only be sought against someone who:
is associated with the wrongdoer
has facilitated the wrongdoing
has committed a wrong
is more than a mere ‘witness’ or bystander
is more than a mere ‘witness’ or bystander
Correct
Correct.
In relation to both non-party disclosure (CPR 31.17), and also Norwich Pharmacal Orders, the likely costs order if the applicant succeeds in its application is…
That the applicant pays the respondent’s costs of the application.
That the respondent (the unsuccessful party) pays the applicant’s costs.
That the respondent pays the applicant’s costs of the application, but the applicant pays the respondent’s costs of giving disclosure.
That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.
That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.
Correct
Correct. Well done.
incorrect
That the applicant pays the respondent’s costs of the application.
Incorrect
Not quite! Revisit this element focusing on the pages dealing with costs.
A claimant in a construction dispute is pursuing a claim for £450,000 against a defendant contractor. The claim arose due to losses suffered when a building project was not completed on time. The case has been allocated to the multi-track and the judge has made a direction for standard disclosure by list of documents. One of the documents in the claimant’s file is a draft letter written at the time of the building project by the managing director of the claimant to the defendant. The draft letter states that the completion date for the building project could be pushed back indefinitely to allow the defendant to carry out a proper job. This letter was never sent and the managing director of the claimant wants to know whether she can prevent the other side from seeing it. Will the defendant be entitled to inspect the letter?
No, because it is a document which supports the defendant’s case but it is covered by litigation privilege.
No, because it is a draft document that was written before the dispute arose so it is not subject to standard disclosure. .
Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege.
No, because it is a document which supports the defendant’s case but it is covered by legal advice privilege.
Yes, because it is an open document between the two parties and so it is not covered by legal professional privilege.
Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege.
CORRECT: The letter appears to be adverse to the claimant’s case (and so supports the defendant’s case) as it suggests there is flexibility over the completion date so undermining an element of the original claim. As such it is subject to standard disclosure and does not fall under either litigation privilege or legal advice privilege. This letter is open to inspection by the defendant.
incorrect
Yes, because it is an open document between the two parties and so it is not covered by legal professional privilege.
INCORRECT: Please review your materials on disclosure and inspection. You must ensure that you know and understand the relevant legal principles relating to privilege as derived from the leading case law as well as the applicable court rules. As a draft letter it would not be considered an ‘open’ document under the case of Parry v News Group Ltd [1990].
A witness statement provided by the claimant includes a reference to a letter setting out Counsel’s advice to the claimant. Will the defendant be able to inspect the letter?
Yes, as a party may inspect a document that is referred to in a witness statement.
No because it is a draft document that was written before the dispute arose so it is not subject to standard disclosure.
No, as only the claimant has the right to decide whether or not to waive privilege over this document.
Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.
No, as Counsel’s advice is covered by litigation privilege.
Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.
Correct. A party can inspect a document referred to in a witness statement (CPR 31.14). This is subject to the usual rules on privilege (which prevent a right to inspect), but privilege may have been waived depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.
incorrect
Yes, as a party may inspect a document that is referred to in a witness statement.
INCORRECT: It is true that as a general rule, a party may inspect a document that is referred to in a witness statement (CPR 31.14). However, that is subject to the usual rules on privilege and waiver of privilege. You would need to know more about the circumstances before reaching this level of certainty. Please revisit the element dealing with inspection.
A claimant is preparing for trial when the existence of a document that should have been disclosed to the defendant comes to light for the first time. At the time of disclosure, the claimant had carried out a reasonable search and properly carried out its disclosure obligations, but this document had not been revealed and therefore had not been disclosed.
What should the claimant do?
Apply to the court for permission to disclose the document (late).
Present the case to the court at trial using the document but making clear that it has not previously been disclosed.
Tell the court about the document.
Present the case to the court at trial without referring to the document.
Disclose the document to the defendant.
Disclose the document to the defendant.
CORRECT: The duty of disclosure continues during proceedings and the duty is to disclose the document to every other party (CPR 31.11). Simply not referring to the document at trial is not an option – it could be that the document is one that is helpful to the other parties, so this would be unfair. There is no need to apply to court to disclose the document. However, if the claimant wants to rely on the document, the claimant may need to apply to court for permission to do so (CPR 31.21) as a party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
incorrect
Apply to the court for permission to disclose the document (late).
INCORRECT: Please review your materials on disclosure, in particular, the continuing duty of disclosure (CPR 31.11). See the element ‘Sources and types of disclosure obligation’.
A claimant is pursuing an action for negligence against their solicitors in the High Court. The claim has been allocated to the multi-track and the court has ordered standard disclosure. One document being considered for disclosure is an email from the managing director at the claimant to the other members of the board of directors. The first 5 paragraphs report that month’s profit figures for the claimant’s business - the managing director has sent such monthly reports for many years. The claimant’s profitability is an issue in dispute in the proceedings. The remainder of the email reports back from a recent meeting with solicitors and sets out the contents of the advice that was given by the solicitors to the claimant at that meeting. Which of the statements below is the most accurate as to the claimant’s disclosure obligations?
The claimant will not be required to disclose the document as it does not meet the test for standard disclosure.
The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged.
The claimant will be required to disclose the document and make it available for the defendant to inspect unredacted.
The claimant will be required to disclose the document and it cannot be withheld from inspection or redacted because the claimant has waived privilege over the document.
The claimant will be required to disclose the document but can withhold inspection of the document on the grounds of legal professional privilege.
The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged.
CORRECT: This document satisfies the test for standard disclosure. The document as a whole will be available for inspection. However, the parts that repeat the legal advice will be redacted as it will be subject to legal advice privilege – it is a confidential communication between a lawyer and a client where the client is repeating legal advice given to them to the rest of the directors on the board. Following the principles in the “Good Luck” case, the client effectively acts as the lawyer’s agent when he repeats the advice to the rest of the board and therefore this falls within the definition of legal advice privilege.
A claimant driver is bringing proceedings against a defendant driver following a road traffic accident. The defendant has admitted liability and the claim is proceeding in relation to quantum only. The accident was captured on video by another driver who provided a copy of the video to the claimant, but the claimant deleted this by error before the proceedings started and does not have the contact details of the party that originally captured it. The court has ordered standard disclosure.
Which of the following best explains why the claimant is not obliged to disclose this video to the defendant?
The video is no longer in the claimant’s control.
It is not something the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case.
The video was created by a third party.
The identity of the ‘author’ of the video (the person that captured it) is unknown.
The disclosure obligation does not extend to videos.
It is not something the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case.
Correct. The obligation to give standard disclosure extends to videos – these are ‘documents’ (CPR 31.4). If a document is or was in the claimant’s control, it does not matter that it was created by a third party or that the author is unknown. The disclosure obligation extends to documents which are no longer in the claimant’s control. However, in this case liability has been admitted therefore it does not appear that this document is something which the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case which is now proceeding only in relation to quantum.
incorrect
The video is no longer in the claimant’s control.
Incorrect. The disclosure obligation extends to documents which are no longer in the claimant’s control. Revisit the element relating to standard disclosure.
Question 1
A claimant has commenced proceedings seeking in the region of £200,000 in relation to
personal injuries. A defence has been filed defending the claim in full. It is clear that the
claimant will be awarded at least £50,000 in relation to the injuries at trial, but the prospects
of recovering more than this are unclear. The claimant needs to make adaptations to their
house to cope with their injuries, but does not have the money to do so.
Does an application for an interim payment by the claimant have good prospects of
success?
A. No, because the defendant has not admitted liability.
B. Yes, because the claimant does not have any money to make the necessary
adaptations.
C. No, because the claimant has not obtained judgment against the defendant.
D. Yes, because if the claim went to trial the claimant would obtain judgment for a
substantial amount of money.
E. No, because the prospects of recovering the majority of the claim are uncertain.
D — substantial amount of money
Test for interim payment in CPR
When does exchange of witness statements usually take place?
Immediately after the defendant has filed its defence.
Immediately after allocation and case management.
Immediately after exchange of expert evidence.
Immediately after disclosure and inspection.
Immediately after the parties have filed directions questionnaires.
Immediately after disclosure and inspection.
Correct
The court will usually give directions for the exchange of witness statements at the allocation and case management stage and therefore exchange will not take place beforehand e.g. after the defendant has filed its defence or the parties have filed directions questionnaires. Exchange of witness statements is generally the step in the action that follows disclosure and inspection. This is because it is useful to review all disclosure documents prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.
The claimant calls a witness to give evidence at trial. How will the witness statement be used by the claimant at trial?
For re-examination by the defendant
As evidence in chief
For cross-examination
As written only evidence
For oral examination by the claimant
As evidence in chief
correct
Any fact which needs to be proved by evidence of witnesses at trial will be by oral evidence (CPR 32.2(1)(a)). However, a witness statement usually stands as evidence in chief at the trial (CPR 32.5(2)) so that in this scenario the claimant would not have to take oral evidence from the witness. The witness is then cross-examined by the other party, here the defendant, and re-examined by the claimant.
Which of the following does the court have no power to control (in relation to witness statements)?
None of the other answers is correct – the court has the power to control all of those.
The number of witness statements.
The length of witness statements
The issues to be covered in witness statements.
None of the other answers is correct – the court has the power to control all of those.
Correct. The court can control the issues to be covered in witness statements, together with their number and length.
In what way is witness evidence for an interim hearing different to that for a trial?
A witness statement for an interim hearing requires different wording for the statement of truth.
A witness statement for an interim hearing does not necessarily need to be by an individual – it can be by a company.
A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application.
The written evidence for an interim hearing should be contained within an application notice or a statement of case.
A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application.
This is correct. In relation to the other answers: - There is no difference in the statement of truth - The evidence can be within the application notice if it is short or it may already be contained in a statement of case, but it can also be in a witness statement instead. - A witness statement is always given by a specific individual, even if it is being given on behalf of a party which is a company or partnership.
Near the start of a witness statement, the witness will usually include a paragraph stating:
I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.
I believe that the facts stated in this witness statement are true. I believe that the facts stated occurred as stated, and where there is a range of opinions on matters described, I state the range of opinions to the best of my ability.
I believe that the facts stated in this witness statement are true. Where I have consulted others in relation to this witness statement, there are views are also stated to the best of my belief.
This witness statement is a true statement of the facts as I perceived them. Nothing in this witness statement is based on information provided to me by others.
I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.
Correct. Well done!
What is the correct form of statement of truth for a witness statement given by the managing director of the Claimant in support of the Claimant’s claim?
I believe that the facts stated in this witness statement are true.
I believe that the facts stated in this witness statement are true. I understand 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.
The Claimant believes that the facts stated in this witness statement are true. I understand 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.
I believe that the facts stated in this statement of case are true. I understand 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.
I believe that the facts stated in this witness statement are true. I understand 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.
Correct. Well done.
Which type of application needs evidence by way of affidavit rather than witness statement?
An application to vary a direction.
An application for a search order.
An application for an interim prohibitory injunction.
An application for summary judgment.
An application for a search order.
Correct
Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.
Which type of application needs evidence by way of affidavit rather than witness statement?
An application for relief from sanctions.
An application for a freezing order.
An application for an interim payment.
An application to strike out a statement of case.
An application for a freezing order.
Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.
An important difference between an affidavit and a witness statement is that…
The form of statement of truth on an affidavit is different.
An affidavit is directly transcribed from an oral account, but a witness statement is not always so transcribed.
Proceedings for contempt of court can be based on any error in an affidavit, whereas in the case of a witness statement, it is only contempt of court if a witness does not have an honest belief in what is stated.
An affidavit must be sworn before a person authorised to administer affidavits
An affidavit must be sworn before a person authorised to administer affidavits
Correct
Correct. Well done! In terms of the other answers: - there is no statement of truth in an affidavit. - what is said in relation to proceedings for contempt of court is roughly correct in relation to witness statements, but incorrect in relation to affidavits. - it is wrong to say that an affidavit is directly transcribed from an oral account.
incorrect
Proceedings for contempt of court can be based on any error in an affidavit, whereas in the case of a witness statement, it is only contempt of court if a witness does not have an honest belief in what is stated.
This is incorrect. Whilst what is said in relation to witness evidence is roughly correct, what is said in relation to affidavits is not. Revisit the introductory pages in this element.
An affidavit opens with the deponent stating, “I [name and other details]…
…confirm to the court my honest belief that…
…state on oath…
…hereby swear that…
…do solemnly declare…
…state on oath…
Correct. Well done!
