DR

Question 1

What is litigation in the context of dispute resolution?

Answer 1

Answer: Litigation is the process of resolving disputes through the court system, potentially leading to a trial where a judge makes a decision based on the merits of the case.
Example: A company sues another for breach of contract, and the case is decided by a judge in court.

Question 2

Describe mediation and its role in dispute resolution.

Answer 2

Answer: Mediation is a voluntary process where a neutral mediator facilitates discussions between disputing parties to help them reach a mutually acceptable settlement.
Example: A landlord and tenant resolve a rent dispute through mediation, with a mediator helping them find a middle ground without going to court.

Question 3

How do the Civil Procedure Rules (CPR) encourage the use of ADR?

Answer 3

Answer: The CPR encourages ADR by requiring parties to consider methods like mediation and negotiation before issuing court claims to reduce litigation costs and court congestion.
Example: Before filing a lawsuit, a business must prove it attempted mediation with the opposing party as per Pre-Action Protocols.

Question 4

What is arbitration, and how does it differ from litigation?

Answer 4

Answer: Arbitration is a form of ADR where disputes are resolved by a neutral arbitrator according to agreed procedural rules, without involving the court system.
Example: Two companies resolve a contractual dispute through an arbitrator as per their contract’s arbitration clause, avoiding court proceedings.

Question 5

What impact can a party’s refusal to engage in ADR have on legal costs?

Answer 5

Answer: A court can penalize a party that unreasonably refuses ADR by limiting their ability to recover legal costs or even ordering them to pay the other party’s costs from the point of the refused ADR offer.
Example: A claimant wins the case but is denied part of their legal cost recovery because they unreasonally refused a mediation offer.

Question 6

BENEFITS OF LITIGATION

Answer 6

BENEFITS OF LITIGATION
* Certainty of outcome
* Merits assessed by a judge
* Create a binding precedent

Question 7

DISADVANTAGES OF
LITIGATION

Answer 7

DISADVANTAGES OF
LITIGATION
* Expense
* Restrictions on Remedies
* Antagonistic

Question 8

Which of the following are methods of alternative dispute resolution?
(check all that apply)
^ Arbitration
* Litigation
[ Mediation
* Negotiation

Answer 8

• Arbitration
• Mediation

If you were listening carefully, you probably got this right. My purpose here was just to get you to read and think a little more about the activities that fall within the ADR bucket.

Question 9

To Read

Answer 9

These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
2. Dealing with a case justly includes, so far as is practicable -
a) Ensuring that it is dealt with expeditiously and fairly;
b) Dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
c) Ensuring that the parties are on equal footing;
d) Saving expense; and
e) Allotting to it an appropriate share of the Court’s resources

Question 10

REFUSAL TO ENGAGE IN
ADR

Answer 10

REFUSAL TO ENGAGE IN
ADR
No power to order ADR, BUT
* Restriction on costs if
UNreasonable

Question 11

Under the overriding objective, courts may order a party to participate in ADR and may charge the party with costs that the court believes could have been avoided had the party voluntarily engaged in ADR.

True
or
False

Answer 11

False

It is important to remember that despite the overriding objective—the CPR provision requiring courts to deal with cases justly and with proportionate costs—the courts have no direct power to order parties to participate in ADR. However, the courts nonetheless can punish a party by charging the party with costs the court thinks could have been avoided had the party engaged in ADR.

Question 12

KEY POINTS ABOUT
ARBITRATION

Answer 12

KEY POINTS ABOUT
ARBITRATION
* Parties chose a neutral third party to decide the matter
* A party can request the court to not progress the claim

Question 13

Who must determine matters of fact and law in accordance with the CPR?

Answer 13

Judge

Question 14

Who determines matters of fact and law in accordance with the rules agreed between the parties?

Answer 14

Arbitor

Question 15

What initiates the limitation period for most tort and contract claims?

Answer 15

Answer: The limitation period usually begins on the date of accrual of the cause of action, which is when the tortious act or breach of contract occurs.
Example: If a client receives negligent legal advice on January 1, 2020, the limitation period for a tort claim based on that advice starts on January 2, 2020.

Question 16

Who facilitates discussion between parties to agree on relevant facts and the appropriate settlement?

Answer 16

Mediator

Question 17

What happens to the limitation period when the claimant is a minor?

Answer 17

Answer: The limitation period for a minor starts on their 18th birthday, giving them until their 24th birthday for contract and tort claims (except personal injury, which is until the 21st birthday).
Example: If a 15-year-old suffers property damage due to negligence, they have until their 24th birthday to bring a claim.

Question 17

How does fraud or concealment affect the limitation period?

Answer 17

Answer: If the defendant has concealed the facts or committed fraud, the limitation period starts when the claimant discovers the fraud or could have discovered it with reasonable diligence.
Example: If a client finds out on March 1, 2021, that their solicitor concealed a mistake made during a case handled in 2015, the limitation period starts from March 1, 2021.

Question 17

How does the limitation period differ for personal injury claims in tort law?

Answer 17

Answer: For personal injury claims, the limitation period is three years from the date of the injury or the date when the claimant became aware of the injury’s connection to the defendant’s negligence.
Example: If a patient discovers on June 1, 2020, that a surgery performed on January 1, 2018, caused a complication, the limitation period for claiming starts from June 1, 2020.

Question 18

What is the ‘long stop date’ in construction claims?

Answer 18

Answer: The long stop date is 15 years from the act or omission causing the loss, after which no claim can be brought, regardless of when the claimant became aware of the issue.
Example: If a building completed on January 1, 2000, shows defects in 2020, no claim can be brought because it’s beyond the 15-year long stop date.

Question 19

THE SOLICITOR:

Answer 19

THE SOLICITOR:
* Must act in the client’s best interest
* By advising client when limitation will expire
* By having client’s instructions whether to pursue claim

Question 20

LIMITATION PERIODS

When does the time period begin for limitation purposes?

Answer 20

LIMITATION PERIODS
* Breach of contract claims: 6 years (Begins to run on breach)
* Tort claims involving personal injury, including fatal accidents:
3 years
For all other tort claims: 6 years
* Claims for defamation: 1 year
* Claims for unfair dismissal: 3 months

Defects in buildings - 3 years from the date the claimant knew or ought to have known material facts
BUT long-stop period is 15 years

Limitation time ENDS on the day the claimant DELIVERS the completed claim form to the court

Question 21

On 1 June, Kathy was knocked off her bicycle when the car that Bob was driving hit her. Kathy was rushed to hospital. She was discharged on 5 June. When does her cause of action of accrue?

1 June
5 June

Answer 21

1 June

Question 22

A developer client and a construction company sign a contract for the development of 6 houses on 2 January 2005. The work is completed on 20 December 2005. In January 2021, cracks start to appear in the walls of the houses. How long does the client have to bring a claim?

A. 15 years
B. 3 years
C. Claim cannot brought.

Answer 22

C. Claim cannot brought.

Question 23

Match the limitation period to the causes of action below by placing the appropriate letter in the blank.
Each letter may be used more than once or not at all.

A - 1 year
B - 3 years
C - 5 years
D - 6 years

1. A claim for breach of contract
2. A claim for civil battery
3. A claim for personal injury

Answer 23

1. 6 years
2. 6 years
3. 3 years

Question 24

SPECIAL CASES - WHEN
PERIOD BEGINS

Answer 24

SPECIAL CASES - WHEN
PERIOD BEGINS
*
*
Minors - on 18th birthday
Mental incapacity - when incapacity is removed
* Fraud or concealment - when fraud or concealment was discovered or should have been discovered
* Mistake - when mistake was discovered or should have been discovered

Question 25

Maria contracted with a large firm of builders to build an extension to her house. The contract stated that any claims arising under the contract must be brought within 12 months of the date of the breach of contract complained of.

The builders completed the extension on 20 June 2019. On 20 July 2019, the extension flooded during a period of heavy rain. It appears the builders did not construct the roof of the extension to make it properly watertight.

What is the expiration date of the limitation period?
* (A) 1 year from 20 June 2019
O (B) 1 year from 20 July 2019
* (c) 1 year from 21 June 2019
* (D) 1 year from 21 July 2019
* (E) 6 years from 20 June 2019
* (F) 6 years from 20 July 2019
O (G) 6 years from 21 June 2019
O (H) 6 years from 21 July 2019

Answer 25

G) 6 years from 21 June 2019

Question 26

What is the purpose of pre-action protocols in dispute resolution?

Answer 26

Answer: To enable parties to gather necessary information, engage in negotiations, make settlement offers, and prepare for court proceedings if needed, all aimed at resolving disputes without litigation.
Example: Before suing a software company for a malfunctioning booking system, a hotel owner must follow the pre-action protocol by sending a detailed claim letter and considering ADR options.

Question 27

What steps are generally involved in pre-action protocols?

Answer 27

Answer: Writing a claim letter, responding within a reasonable timeframe, disclosing relevant documents, considering joint expert evidence, exploring ADR, and reassessing positions before litigation.
Example: In a dispute over a construction defect, both parties must share key documents like the contract and inspection reports and consider appointing a joint construction expert.

Question 28

How does the court respond to non-compliance with pre-action protocols?

Answer 28

Answer: Courts may penalize non-compliant parties by adjusting the legal costs recoverable, especially if non-compliance affects the potential for settlement.
Example: If a claimant refuses ADR and proceeds to litigation, they might not recover all legal costs even if they win, due to non-compliance with the pre-action protocol.

Question 29

What are pre-action applications, and when might they be used?

Answer 29

Answer: Applications for pre-action disclosure of documents or inspection of property, used when such information is necessary to properly investigate a claim.
Example: After an accident with a factory machine, a worker might apply for pre-action disclosure of the machine’s maintenance records.

Question 30

What happens to legal costs incurred during the pre-action phase if the dispute is settled before going to court?

Answer 30

Answer: The parties need to agree on the costs as part of the settlement since it’s resolved early and costs are generally lower than full litigation.
Example: If a dispute over faulty software is settled during the pre-action phase, the parties must negotiate who covers the costs incurred up to that point.

Question 31

STEPS IN PROTOCOL:

Answer 31

STEPS IN PROTOCOL:
1. Claimant writes to Defendant with concise details of claim
2. Defendant responds in reasonable time
3.Disclosure of key documents
4.Court permission required for expert evidence
5. Parties consider alternative dispute resolution (ADR)
6. Take stock of positions before court action

Question 32

DIFFERENCES BETWEEN PI
PrOTOCOL AND STANDARD

Answer 32

DIFFERENCES BETWEEN PI
PrOTOCOL AND STANDARD

*Disapply protocol by agreement and for good reason
*Appoint protocol referee
*Parties should meet to narrow issues

Question 33

PARTY DOES
NoT COMPLY
WITH PROTOCOL

Answer 33

PARTY DOES
NoT COMPLY
WITH PROTOCOL
* Sanctions
Adverse cost consequences

Question 34

What must a person show to convince the court to permit the person to inspect documents in someone else’s possession prior to filing a civil claim?

what must be shown for a pre-action application for disclosure to be granted?’

Answer 34

The answer: that the documents are necessary for the party to investigate the claim properly.

Relevance: The documents sought are relevant to the potential claim and likely to support the person’s case or adversely affect the case of the party in possession of the documents.
Necessity: The inspection of these documents is necessary for disposing fairly of the anticipated claim, or for saving costs. The person must show that without access to these documents, they cannot fully understand their position, or properly prepare their claim.
Proportionality: The request for document inspection is proportionate to the nature of the case, considering the importance of the documents, the complexities of the issues involved, and the likely costs associated with the inspection.
Specificity: The person must be able to specify the documents or classes of documents they seek to inspect, rather than making a broad or speculative request.
Jurisdiction and Legal Basis: The person must establish that the court has the jurisdiction and there’s a legal basis under the rules of civil procedure or specific statutes that allow for such pre-action discovery.

Question 35

Which phrase best describes the purpose of pre-action protocols?
* (A) To minimise the costs of litigation
* (B) To ensure that parties follow
the CPR
* (c) To promote settlement of claims without litigation, and where that is not possible, to lay the groundwork for proceedings
O (D) To prevent unsubstantiated claims from being advanced
© (E) To promote mediation

Answer 35

(c) To promote settlement of claims without litigation, and where that is not possible, to lay the groundwork for proceedings

Question 36

Q1: How does a claimant start a legal claim?

Answer 36

A1: By completing a Claim Form and submitting it to the court, which then issues the claim and assigns it a number, stopping the limitation period.

Example: Jane fills out a Claim Form regarding a breach of contract dispute with her supplier and submits it to the court. The court issues the claim, giving it an official number and halting the limitation period.

Question 37

Q2: When should a claim be issued in the High Court?

Answer 37

A2: When the claim is valued over £100,000 (or £50,000 for personal injury cases), involves complex issues, or has significant public importance.

Example: A technology startup sues a competitor for breach of a complex software development contract worth £150,000, choosing the High Court due to the claim’s value and complexity.

Question 38

Q3: What types of cases does the Queen’s Bench Division handle?

Answer 38

A3: Personal injury, breach of contract, negligence, and more. It includes the Technology and Construction Court for construction-related claims over £250,000 and the Commercial Court for complex business disputes.

Example: A construction company involved in a £300,000 dispute over building defects issues its claim in the Technology and Construction Court within the Queen’s Bench Division.

Question 39

Q4: What is the role of the Chancery Division in the High Court?

Answer 39

A4: It deals with equity and trusts, commercial fraud, intellectual property, and more, including specialist courts for bankruptcy and company law.

Example: An inventor files a claim in the Chancery Division against a former business partner for infringing on an intellectual property agreement.

Question 40

Q5: How are county court claims typically issued?

Answer 40

A5: Through the County Court Money Claims Centre for debt-related cases, or by completing an N1 form for unspecified claims.

Example: Emily, a freelance graphic designer, uses the online Money Claim Form to issue a claim against a client who failed to pay £2,000 for her services, routing it through the CCMCC.

Question 41

REASONS CLAIM SHOULd
START IN HIGH COURT

Answer 41

REASONS CLAIM SHOULd
START IN HIGH COURT
* Value of claim/amount in dispute
* Complexity of facts, issues, remedies, or procedures
Importance of outcome

Question 42

Which claim should be issued in the High Court?
* (A) A claim for false imprisonment against the police arising out of incorrect detention of a suspect, where the claimant seeks £50,000 in damages.
* (B) A breach of contract claim brought by a
supermarket against a supplier for supplying goods not corresponding with their description worth £120,000.

Answer 42

• (A) A claim for false imprisonment against the police arising out of incorrect detention of a suspect, where the claimant seeks £50,000 in damages.

A) is correct. Despite the fact that only £50,000 is sought, it is important for the public to know that the police do not abuse their power to detain suspects. On the other hand, whilst (B) involves more than £100,000, supplying goods not within their description seems straightforward. There is nothing obviously complex about it.

Question 43

What types of cases does the Queen’s Bench Division handle?

Answer 43

• Defamation
• Breach of contract
• Negligence
• Personal injury
• Land possession
• Non-payment of debts

Question 44

What is the role of the Chancery Division in the High Court?

Answer 44

• Equity and trusts
• Commercial fraud
• Tax
• Intellectual property
• Land
• Business disputes
• Contentious probate
  Regulatory work
• Bankruptcy
• Professional negligence

Question 45

Which choice best describes the court in which the following proceedings should be issued?
1. A claim against a solicitor for negligent advice concerning their client’s divorce.
* (A) High Court, Queen’s Bench Division O (B) High Court, Queen’s Bench Division (Technology
and Construction Court)
O (C) High Court, Queen’s Bench Division (Commercial
Court)
© (D) High Court, Chancery Division
* (E) High Court, Chancery Division (Companies Court)

Answer 45

© (D) High Court, Chancery Division

Question 46

Which choice best describes the court in which the following proceedings should be issued?
2. A breach of contract claim against an architect for the construction of a £10 million office block.
* (A) High Court, Queen’s Bench Division
* (B) High Court, Queen’s Bench Division (Technology
and Construction Court)
* (C) High Court, Queen’s Bench Division (Commercial
Court)
O (D) High Court, Chancery Division
* (E) High Court, Chancery Division (Companies Court)

Answer 46

(B) High Court, Queen’s Bench Division (Technology
and Construction Court)

Question 47

Which choice best describes the court in which the following proceedings should be issued?
3. A clinical negligence claim worth in excess of £1,000,000.
* (A) High Court, Queen’s Bench Division
* (B) High Court, Queen’s Bench Division (Technology
and Construction Court)
* (C) High Court, Queen’s Bench Division (Commercial
Court)
O (D) High Court, Chancery Division
* (E) High Court, Chancery Division (Companies Court)

Answer 47

(A) High Court, Queen’s Bench Division

Question 48

Which choice best describes the court in which the folloing proceedings should be issued?
4. A company shareholder dispute.
* (A) High Court, Queen’s Bench Division
* (B) High Court, Queen’s Bench Division (Technology
and Construction Court)
* (C) High Court, Queen’s Bench Division (Commercial
Court)
* (D) High Court, Chancery Division
* (E) High Court, Chancery Division (Companies Court)

Answer 48

• (E) High Court, Chancery Division (Companies Court)

Question 49

Which choice best describes the court in which the following proceedings should be issued?
5. A breach of contract claim concerning the carriage of goods.
* (A) High Court, Queen’s Bench Division
* (B) High Court, Queen’s Bench Division (Technology
and Construction Court)
* (C) High Court, Queen’s Bench Division (Commercial
Court)
O (D) High Court, Chancery Division
* (E) High Court, Chancery Division (Companies Court)

Answer 49

• (C) High Court, Queen’s Bench Division (Commercial
  Court)

Question 50

Q1: What is the first step in issuing a claim form in dispute resolution?

Answer 50

A1: The first step is for the claimant’s solicitor to complete a claim form, indicating the court for issuing the claim and stopping the limitation period from running.

Example: Sarah’s solicitor completes an N1 claim form for her breach of contract case against a supplier, indicating the County Court as the issuing court.

Question 51

Q2: What information must be included on a claim form?

Answer 51

A2: The claim form must include the court in which the claim is to be issued, parties’ names and addresses, a concise statement of the claim and remedy sought, and a statement of value.

Example: In a claim form for a personal injury case, John includes the High Court as the issuing court, detailed names and addresses, a brief description of the injury and compensation sought, and a statement that he expects to recover more than £50,000.

Question 52

Q3: What is the purpose of a statement of truth on a claim form?

Answer 52

A3: The statement of truth is a declaration that the facts stated in the claim form are true, and it must be signed by the party or their legal representative.

Example: Jane, as the claimant, signs a statement of truth on her claim form, declaring her belief in the accuracy of the presented facts regarding a property dispute.

Question 53

Q4: How are court fees determined for issuing a claim?

Answer 53

A4: Court fees are based on the amount of damages claimed, with a 5% fee for claims between £10,000 and £200,000, and a set fee of £10,000 for claims exceeding £200,000.

Example: For a breach of contract claim valued at £150,000, the court fee would be 5% of the claim value, amounting to £7,500.

Question 54

Q5: When might the particulars of claim be included on the claim form?

Answer 54

A5: The particulars of claim may be included on the claim form in simple debt recovery and breach of contract claims but are usually served as a separate document in more complex cases.

Example: For a straightforward debt recovery case where a client owes £5,000, the particulars of claim detailing the debt and demand for payment might be included directly on the back of the claim form.

Question 55

Which of the following would you suspect is NOT a valid name under which to file a claim?
(check all that apply)
* (A) Danny Hill
* (B) Dan Hill and Associates
* (c) Daniel James Hill, Ltd.
* (D) Daniel James Hill, trading as Danny & Sons

Answer 55

Correct
(A) and (B) would not be valid names under which to file a claim. Since you know my name is Daniel James Hill, and you know we need full, official names, Danny just won’t do. Similarly, Dan Hill and Associates appears to use an informal name. Note that Associates is not how we indicate a formal partnership name, either—we need “(a firm)”.

Option (C), Daniel James Hill, Ltd., seems OK (assuming that I have a limited company that is named Daniel James Hill, Ltd.).
Option (D) shows the right form of name to use if I am trading under the name Dany & Sons.

Question 56

COUNTY COURT AMOUNT STATEMENTS:

Answer 56

COUNTY COURT AMOUNT STATEMENTS:
* Not more than £10,000
More than £10,000; or
* More than £25,000

Question 57

HIGH COURT AMOUNT STATEMENTS:

Answer 57

HIGH COURT AMOUNT STATEMENTS:
* More than £100,000 for non-personal injury claims or
* £50,000 or more for personal injury claims

Question 58

DISREGARD

Answer 58

DISREGARD
* Interest
* Costs
* Contributory negligence
* Counterclaims

Question 59

A woman becomes ill after drinking a bottle of ginger beer and discovering a snail at the bottom of the bottle. [Donoghue v Stevenson. Yes, the study of law can be disgusting at times.] Due to her illness, she lost £7,000 wages and was not able to take a pre-paid £6,000 holiday excursion. Her solicitor believes she can also recover an additional £10,000 for loss of amenity and pain and suffering. The solicitor estimates costs at £5,000. If the solicitor files the claim in County Court, what should the solicitor claim as damages on the claim form?
O (A) £23,000
O (в) £28,000
* (c) Not more than £25,000
* (D) More than £10,000
* (E) More than £25,000

Answer 59

The answer is D. This is a question that I wanted you to think about a little more. On the claim form for a County Court claim, you use one of the three phrases I gave you: Not more than £10,000, More than £10,000, or More than £25,000. Because we don’t count costs, this is a claim for £23,000. Therefore, we would use: More than £10,000.

Question 60

X

Answer 60

If the claimant signs the statement of truth, it begins with the words “I believe.”
If the claimant is a company or partnership, one of the directors or partners should sign and include the additional wording “I am duly authorised by the claimant to sign this statement.”
If, in an exceptional case, the solicitor signs, the form should begin “the claimant believes” and they include the additional wording “I am duly authorised by the claimant to sign this statement.”

Question 61

A bus driver was going about his daily business. The bus had one passenger, an 8-year-old child. Unfortunately, the bus driver’s vehicle was struck by a taxi.
Both the bus driver and the taxi driver dispute that they were negligent, with each claiming they had the right of way. Both do not necessarily believe the child was injured as severly as claimed.
The child had their parent appointed as a litigation friend for pursuing the claim.
Which Part should the child’s solicitor follow?
* (A) Part 7
* (B) Part 8

Answer 61

• (A) Part 7

Question 62

Q1: What are the time limits for serving a claim form within England and Wales, and internationally?

Answer 62

A1: Within England and Wales, the time limit is 4 months from the date of issue. For international service, it’s 6 months.

Example: If a claim form is issued on January 1st, it must be served by May 1st within England and Wales, and by July 1st internationally.

Question 63

Q2: Who can serve the claim form and what are the common methods?

Answer 63

A2: Either the court or the claimant’s solicitor can serve the claim form. Methods include personal service, service on nominated solicitors, service by fax, DX, or email (with consent).

Example: A solicitor serving a claim form on a defendant’s nominated solicitor after the defendant has indicated this preference in written communication.

Question 64

Q3: What is deemed service and how is it calculated?

Answer 64

A3: Deemed service is presumed to occur on the second business day after the required service step is completed, excluding weekends and bank holidays.

Example: If a claim form is posted on a Monday, it is deemed served on the following Wednesday.

Question 65

Q4: When is court permission required for serving a claim form on a defendant outside the jurisdiction?

Answer 65

A4: Permission is required for all locations outside the UK, except Scotland and Northern Ireland, and when specific conditions apply.

Example: Seeking court permission to serve a claim form on a defendant residing in France, as it involves serving outside the UK’s jurisdiction.

Question 66

Q5: What is alternative service and when might it be used?

Answer 66

A5: Alternative service is authorized by the court in situations where standard service methods are inadequate or have failed, using any method the court deems suitable.

Example: The court allowing service by email for a defendant whose physical address is unknown or inaccessible, despite the lack of express consent for email service.

Question 68

WHAT:

Answer 68

WHAT:
* Medical reports
* Schedules of past and future losses and expenses
* Notice of funding
* Litigation friend certificate of suitability
* Response pack (acknowledgment of service, defend or contest jurisdiction)

How:
The court uses mail to serve
The solicitor has other methods of service

Question 69

A sole trader complained to their supplier that the supplier delivered the wrong goods. The supplier is a partnership. The parties could not resolve their differences. The sole trader sent the partnership a claim letter. The partnership responded that they denied the claim and that they retained the law firm of Hill & Hill to represent them and be their nominee. The sole trader issued a claim in County Court. The sole trader decided to serve the partnership personally, rather than rely on court service; and so, he had process served on Sam Supplier, the partner with whom the sole trader had been dealing.

yes

NO

Answer 69

No. Be careful not to get lost in facts in a question like this one. The rule is simple—if a party has nominated solicitors to receive process, service must be on the solicitor.

Question 70

How long does a party have to serve a claim after it has been issued?

Answer 70

4 months

Question 71

This second example is referring to a document other than the claim form. For a CLAIM FORM in this example, the date would begin on Sunday and deemed service would be on the following Tuesdsay [2nd business day after personal service].

Answer 71

This second example is referring to a document other than the claim form. For a CLAIM FORM in this example, the date would begin on Sunday and deemed service would be on the following Tuesdsay [2nd business day after personal service].

Question 72

1. A person wanted to make a claim for breach of contract against Davidson Limited—a company. On Tuesday, the claimant’s solicitors rang the bell at John Davidson’s house and handed him the claim form. John Davidson is the managing director of Davidson Limited, and John’s home is listed as the company’s registered office. Davidson Limited’s solicitors made it clear in pre-action correspondence that they were instructed to accept service of proceedings.

Was service of proceedings valid?

Yes
No

Answer 72

The correct answer is: Yes. Even though Davidson Limited’s solicitors made it clear in pre-action correspondence that they were nominated to accept service, a company may still be served personally by serving documents at the company’s registered office. Therefore, service was valid.

Question 73

When the claimant’s solicitors rang the bell at John Davidson’s house on Tuesday, they handed a claim form to him and they explained that they had just handed Davidson service papers for a breach of contract action. Before they could continue, Davidson threw the papers on the ground and slammed his door. Assume personal service was a valid form of service under the circumstances. What day was Davidson considered served?

O (A) Tuesday
O (B) Wednesday
O (C) Thursday
O (D) He will not be considered served because service was incomplete.

Answer 73

The correct answer is (C), Thursday. Davidson would be considered served 2 days after the relevant step required for service. Here, since Davidson was served personally, the relevant step was handing him the papers on Tuesday. Two business days later is Thursday. Note that it does not matter that Davidson threw the papers on the ground, so long as he was handed the papers and told of their nature.

Question 74

One month after a claimant began a claim in County Court, their solicitors served a claim form on a defendant. The claim form did not include the Particulars of Claim. How long do the solicitors have to serve the Particulars?

O (A) Four months
O (B) Three months
O (C) Thirty days
O (D) Fourteen days

Answer 74

O (D) Fourteen days

If the claim form does not include the Particulars of Claim, they must be served within 14 days of service of the claim form (or within four months of issuance of the claim, if that date is earlier).

Question 75

Q1: What is the time limit for a defendant to respond to a claim served within England and Wales?

Answer 75

A1: The defendant has 14 days from the date of deemed service of the particulars of claim to respond.

Example: If the deemed service date is April 1st, the response is due by April 15th.

Question 76

Q2: What are the defendant’s options upon receiving a claim form?

Answer 76

A2: The defendant can admit the claim, file a defense, or file an acknowledgment of service.

Example: In a breach of contract case, the defendant may choose to admit liability for failing to deliver goods as agreed.

Question 77

Q3: What happens if a defendant admits a claim for a specified sum?

Answer 77

A3: The court issues a judgment order for the amount due, including interest and fixed costs, which the defendant is then required to pay.

Example: A defendant admits owing £5,000 in unpaid invoices, leading to a court-ordered payment including interest.

Question 78

Q4: How can a defendant extend the deadline for filing a defense?

Answer 78

A4: By filing an acknowledgment of service within 14 days of receiving the particulars of claim, extending the defense filing deadline to 28 days.

Example: A complex negligence claim requires more time for defense preparation, prompting the defendant to file an acknowledgment of service.

Question 79

Q5: Under what circumstances can a default judgment be set aside?

Answer 79

A5: If the defendant demonstrates a real prospect of successfully defending the claim or provides another good reason why the judgment should be set aside.

Example: A default judgment was entered while the defendant was hospitalized and unable to respond; the defendant applies to set it aside, showing evidence of a potential defense.

Question 80

DEFENDANT’S RESPONSE TO PROCEEDINGS

Answer 80

DEFENDANT’S RESPONSE
TO PROCEEDINGS
* Admit the claim
* File and serve a defence
* File an acknowledgement of service

Question 81

ADMITTING A SPECIFIED CLAIM

Answer 81

ADMITTING A SPECIFIED CLAIM
* Pay, if within 14 days, judgment is NOT recorded
* Ask for time to pay or to pay in instalments§

Question 82

Carrie Claimant issues proceedings against Dillon Defendant for breach of contract. The claim alleges that Dillon delivered goods that did not meet the specifications in the contract and that, as a result, Carrie suffered £6,335 damages. Dillon admits he delivered nonconforming goods but disputes that Carrie suffered £6,335.

Is the court likely to set this case for a hearing to determine damages?

• (A) No, because the claim is for a specified amount.
• (B) Yes, because this will be considered a claim for an unspecified amount.

Answer 82

(B) Yes, because this will be considered a claim for an unspecified amount.

A claim for damages is considered to be a claim for an unspecified amount. If the defendant admits liability on an unspecified claim but not the amount of damages, the court will set a hearing to determine damages. Note that generally, only debt claims are considered to be specified claims (for example, a claim that the contract called for payment for £5,000, which remains unpaid).

Question 83

ADMITTING AN UNSPeCIFIED CLAIM

Answer 83

ADMITTING AN
UNSPeCIFIED CLAIM
* Case is stayed
* Court will determine damages

Question 84

As a general rule, when must a defendant file a defence?
* (A) Within 14 days of service of the Particulars of Claim, with the acknowledgement of service.
O* (B) Within 28 days of service of the Particulars of Claim, provided an acknowledgement of service is filed within 14 days of deemed service.
* (c) Within 56 days of service of the Particulars of Claim, provided an acknowledgement of service is filed within 14 days of service

Answer 84

The correct answer is (B). Don’t worry if you didn’t get this right—that’s why I brought it to your attention again. Generally, a defendant can file a defence up to 28 days after they are deemed served with the Particulars of Claim, provided they file an acknowledgement of service within 14 days of deemed service. The defendant will have 56 days in which to serve a defence only if they ask the claimant or court for an additional 28 days and the request is granted.

Question 85

The deemed date of service is three business days after the documents for service are posted.

False
True

Answer 85

False,

The deemed date of service is two business days after the documents for service are posted.

Question 86

Which of the following conditions must be met to have a default judgment set aside?
(check all that apply)
© (A) The defaulting party must have a real prospect of successfully defending the claim.
* (B) The defence must be attached to the application to set aside the default.
* (c) The defendant must have a good reason for the default.
O (D) The reason must be something beyond a regrettable mistake.
© (E) The defendant must have acted diligently to have the default set aside.

Answer 86

The correct answers are (A), (C), and (E). For a court to grant an application for default, the court must be satisfied that the defendant has a real prospect of successfully defending the claim (A), the defendant must show a good reason why the judgment should be set aside (C), and the defendant must act diligently (E). While it is advisable to include at least a draft of a defence with the application, (B), a defendant is not required to do so. And neither is there a requirement that the reason be something more serious than a regrettable mistake (D).

Question 87

Q1: What is the purpose of the overriding objective in relation to statements of case?

Answer 87

A1: To ensure cases are handled fairly and proportionately, aiding judges in early issue identification and efficient trial management.

Example: In a case where particulars of claim ambiguously describe a contract breach, a more detailed revision may be necessary to align with the overriding objective.

Question 88

Q2: How should interest be claimed in a particulars of claim?

Answer 88

A2: Interest can be claimed based on contract terms, statutory interest rates, or at the court’s discretion, typically starting from the breach date or loss occurrence.

Example: In a breach of contract case filed on April 1, 2023, claiming £10,000 in damages, the claimant might also seek annual interest at 8% from the breach date until payment.

Question 88

Q3: What are the key elements of a defense in response to a claim?

Answer 88

A3: A defense should admit, deny, or neither admit nor deny each allegation, providing a basis for denial and an alternative version of events for contested claims.

Example: If a defendant is accused of negligence in a car accident claim but believes the claimant was at fault, the defense would deny the negligence allegations and detail the claimant’s contributory negligence.

Question 89

Q4: What is a Part 20 claim, and when is it used?

Answer 89

A4: A Part 20 claim allows a defendant to bring additional claims for liability sharing, indemnities, or contributions against third parties or the claimant, often requiring court permission.

Example: In a construction defect lawsuit, a contractor sued by a property owner might file a Part 20 claim against a subcontractor responsible for the faulty work.

Question 90

In which of the following cases may the defendant refuse to admit or deny an allegation in the particulars of claim?
(check all that apply)
* (A) The claimant was driving within the posted speed limit.
* (B) The defendant is incorporated under the laws of Germany.
* (C) The claimant has been experiencing intense back pain since the accident.

Answer 90

(A) and (C) are correct. A defendant may refuse to admit or deny (that is, make a ‘non-admission’ with respect to) an allegation that goes to a matter outside the defendant’s knowledge. In (B), the defendant should know whether or not it is incorporated in Germany and so the defendant must either admit this allegation or deny it. (A) can go either way—if the defendant saw the claimant and thinks they know whether the claimant was driving within or above the speed limit, the defendant should either admit or deny this allegation. But if the defendant did not see the claimant’s car or otherwise could not judge the car’s speed, then the defendant should make a non-admission. (C), on the other hand, is information the defendant would almost definitely not know, and so the defendant would make a non-admission for this.

Question 91

Q5: Under what circumstances can a statement of case be amended after service?

Answer 91

A5: Amendments post-service require court permission or consent from all parties, especially for significant changes like adding or removing parties.

Example: If new evidence reveals an additional liable party after the original claim filing, the claimant would need court permission to amend the claim to include this new party.

Question 92

Which of the following may be brought under Part 20?
(check all that apply)
* (A) A counterclaim by the defendant against the claimant.
* (B) A third-party claim against
an employer for a tort committed by an employee whilst at work.
* (C) A claim against a party or non-party for indemnity.
(D) A claim against a party or non-party for contribution.

Answer 92

All are correct. I just wanted to gather this information into one place for you. Part 20 may be used by a party to make a counterclaim against another party, by a party to bring in a third party as a new defendant, and/or to make a claim that a party or non-party should pay some (contribution) or all (indemnity) of a claim if the defendant is held liable for damages.

Question 93

A caterer (claimant) issues a breach of contract claim against a company. The caterer contends that the company entered a contract with the caterer requiring the caterer to provide food and beverages at a company event. The caterer’s employee travelled for three hours to the event venue, only to find that the event was cancelled. Since the caterer prepared and delivered all the food and beverages as agreed, they seek the full contract price as damages. In defence, the company alleges that its event planner called the caterer a week before the event to advise that the event was cancelled. The caterer denies that this call ever happened.
How should the caterer respond to service of the defence?
O (A) The caterer need do nothing and should wait for the Notice of Proposed Allocation and the Directions Questionnaire.
O (B) The claimant should amend the Particulars of Claim to deal with the allegation regarding the call (which they deny ever happened)
and serve without approval.
O (C) The claimant should make an application to the court for leave to amend the Particulars of Claim to deal with the allegation
regarding the call.
O (D) The claimant should file and serve a reply to the defence making it clear that they firmly deny the allegation that the defendant
made a call cancelling the instruction, putting the defendant to strict proof with regard to this allegation.
O (E) The claimant should make an application to strike out the claim for fraud (as they allege that the telephone call is a fabrication).

Answer 93

(D) The claimant should file and serve a reply to the defence making it clear that they firmly deny the allegation that the defendant
made a call cancelling the instruction, putting the defendant to strict proof with regard to this allegation.

Question 94

Q1: What are the criteria for allocating a claim to a specific track, and what are the track thresholds?

Answer 94

A1: Claims are allocated based on their financial value and complexity: Small Claims Track for claims up to £10,000, Fast Track for £10,000 to £25,000, and Multi-Track for over £25,000 or complex cases.

Example: A claim worth £8,000 for unpaid invoices would likely be allocated to the Small Claims Track, given its value and potential straightforwardness.

Question 94

Q2: What information must parties provide in the Directions Questionnaire?

Answer 94

A2: Parties must outline details for ADR consideration, compliance with pre-action protocols, expert evidence requirements, witness lists, trial length estimates, and anticipated costs.

Example: In a property dispute case, parties would detail any mediation attempts, list potential witnesses like surveyors, and estimate trial duration based on the complexity.

Question 95

Q3: What happens if a party fails to comply with case management directions?

Answer 95

A3: Non-compliance can lead to sanctions such as striking out parts of the case, cost penalties, or restrictions on evidence. Parties can apply for relief from sanctions based on the breach’s seriousness and reasons.

Example: If a party fails to disclose documents by the set deadline, the court might issue an ‘unless order’ stipulating document disclosure by a new deadline or face having their defense struck out.

Question 96

Q4: How does a Case Management Conference (CMC) function in Multi-Track cases?

Answer 96

A4: A CMC reviews case progress, compliance with directions, necessary further steps, and encourages settlement. It allows for in-depth discussion on complex cases’ management.

Example: In a complex commercial dispute, a CMC would address specific disclosure needs, potential expert testimony areas, and set a realistic timeline towards trial.

Question 97

Q5: What are the considerations for granting relief from sanctions?

Answer 97

A5: The court assesses the breach’s seriousness, reasons for non-compliance, and the case’s overall circumstances, focusing on efficient and proportionate litigation conduct.

Example: A defendant who missed a filing deadline due to a documented serious medical emergency might apply for and be granted relief from sanctions, allowing them to proceed with their defense.

Question 98

SMALL CLAIMS FEATURES

Answer 98

You could have touched on the fact that procedure is simplified (as some Civil Procedure Rules don’t apply), the rules of disclosure are different, the parties don’t necessarily have to attend the hearing, costs are limited, and expert fees cannot exceed £750.

• Small Claims hearing may take place without parties in attendance
• Recoverable costs restricted to fixed costs and reasonable expenses
• Expert fees usually restricted to £750

Question 99

APPLICATION TO SET ASIDE
DECISION BY PARTY NOT IN ATTENDANCE

Answer 99

APPLICATION TO SET ASIDE
DECISION BY PARTY NOT IN ATTENDANCE
* Application must be made within 14 days of service of the order
* Party must prove they had good reason for not attending
* Party’s claim or defence must have reasonable prospect of success

Question 100

FAST TRACK FEATURES

Answer 100

FAST TRACK FEATURES
* Restriction on expert advice
* Joint experts are encouraged
* Emphasis on written evidence

Question 101

True or False: A contract claim for £22,000 involving complex issues that will likely take three days to try will be held in the High Court.

Answer 101

False. Generally, a contract claim for £22,000 will be heard in the fast track. However, if trial of the claim will take more than one day, the case usually will be allocated to the multi-track. Note that not all multi-track claims are heard in the High Court. Generally, only multi-track claims involving £100,000 or more are heard in High Court.

Question 102

MULTI- TRACK FEATURES

Answer 102

MULTI- TRACK FEATURES
* Court expects parties to discuss and agree to directions
* Greater flexibility for judge to make decisions
Stays for alternative dispute resolution are encouraged
* Flexibility for experts

Question 103

CCMC-COSTS AND CASE
MANAGEMENT CONFERENCE

Answer 103

CCMC-COSTS AND CASE
MANAGEMENT CONFERENCE
* Recoverable costs must be proportional to amount in dispute and the parties* approach to the claim must be reasonable
* Case summaries and skeleton arguments may be required

Question 104

DIRECTIONS
QUESTIONNAIRE

Answer 104

DIRECTIONS
QUESTIONNAIRE
* Return in 28 days
* No agreed extensions
* Purpose: provide court with information, enabling it to allocate the case and make directions to achieve overriding objective

Question 105

MATTERS ADDRESSED

Answer 105

MATTERS ADDRESSED
* Stay for ADR
* Whether parties have complied with pre-action protocol
* Whether experts are required
* Names of witnesses and issues to which their evidence relates
* Estimate of length of trial
*Anticipated costs of proceedings

Question 106

SMAlL CLaImS TRACK
STANDARD DIRECTIONS

Answer 106

SMAlL CLaImS TRACK
STANDARD DIRECTIONS
* Documents to be exchanged
* Documents to be filed or brought to court
* Provision for final hearing date
* Encouragement to agree claim
* Experts require express permission

Question 106

FAST TRACK STANDARD
DIRECTIONS

Answer 106

FAST TRACK STANDARD
DIRECTIONS
* Disclosure of required information
*Witness statements
*Any exchange report
*A pre-trial checklist to determine compliance
* Date of trial

Question 107

MULTI - TRACK CASES

Answer 107

MULTI - TRACK CASES
Timetable and directions vary depending on complexity of case

Question 108

CASE MANAGEMENT
CONFERENCE (CMC)
Court will:

Answer 108

CASE MANAGEMENT
CONFERENCE (CMC)
Court will:
* Review steps taken to progress the claim
* Review compliance with directions
* Consider any further directions or orders
Encourage agreement where possible

Question 109

DIRECTIONS MAY INCLUDE:

Answer 109

DIRECTIONS MAY INCLUDE:
* Time limits for responding to any requests for further information
* What disclosures must be made
* The number of witnesses the parties may call and provision for exchange of witness statements
* Whether experts may be used

Question 110

UNLESS ORDER

Answer 110

UNLESS ORDER
Directs the party to comply within a specific timescale and specifies the penalty unless order is complied with

Question 111

RELIEF FROM SANCTIONS

Answer 111

RELIEF FROM SANCTIONS
The court will consider:
* Seriousness of breach
Why the breach occurred
* The circumstances of the case
* Efficiency and proportionality

Question 112

In which track will trial take place within 30 weeks of allocation?

• (A) Small claims track
• (B) Fast track
• (C) Multi-track

Answer 112

(B) is correct. Directions for fast track cases will set the trial date within 30 weeks.

Question 113

2. In which track are Case Management
   Conferences usually featured?
   * (A) Small claims track
   * (B) Fast track
   * (C) Multi-track

Answer 113

(C) is correct. Multi-track cases are more complex than small claims or fast track cases. Therefore, multi-track cases require more court involvement, and the court gets involved through Case Management Conferences (CMCs). Fast track and small claims tracks do not require CMCs.

Question 114

3. In which track are expert fees restricted to £750?
   * (A) Small claims track
   * (B) Fast track
   O (C) Multi-track

Answer 114

(A) is correct. Expert fees are restricted to £750 in small claims cases. Fast track cases restrict expert evidence in a different way—joint experts are encouraged, and the emphasis is on written evidence. In multi-track cases, the court will look at expert costs and decide what is needed on a proportionality basis.

Question 115

4. What is the name of an order that directs a party to comply with a direction in a specific timescale and specifies the penalty the court will impose if the order is not complied with?
   O (A) An order for sanctions
   O (B) An unless order
   * (C) A directions order
   O (D) A compliance order

Answer 115

(B) is correct. An order that directs a party to comply with a direction and that specifies the penalty for failure to comply is called an ‘unless order’.

Question 116

5. The precise sanction to be imposed for failure to comply with a direction is:
   * (A) Specified by statute
   * (B) Specified by the CPR
   * (C) Within the court’s discretion
   * (D) Limited to monetary sanctions only

Answer 116

C) is correct. The precise sanction to be imposed for failure to comply with a direction is within the court’s discretion. The judge will balance the interests of justice with prejudice to the party in determining the appropriate sanction. (A) and (B) are wrong. There are no “do X, get Y” sanctions specified within a statute or the CPR. (D) is also wrong. Courts have a number of discretionary sanctions available—such as barring evidence, restricting the number of witnesses, and striking a claim—in addition to imposing costs. In determining the appropriate sanction, the court will try to balance interests of justice against striking out the party’s claim.

Question 117

Q1: What is an interim application, and when is it used in legal proceedings?

Answer 117

A1: An interim application is a court application made before a trial to address urgent issues, preserve the status quo, or ensure fairness. It’s used to handle matters that cannot wait until the final resolution of the case.

Example: Requesting a freezing order to prevent a defendant from dissipating assets before the conclusion of a fraud case.

Question 118

Q2: How is a summary judgment application made, and what must the applicant prove?

Answer 118

A2: A summary judgment application is made using an application notice and must be supported by written evidence. The applicant must prove the other party has no real prospect of success on the claim or issue and there’s no other compelling reason for a trial.

Example: A defendant applies for summary judgment in a breach of contract case, arguing the claimant’s evidence fails to establish a breach occurred.

Question 119

Q3: What is required for an application for an interim payment, and under what circumstances can it be granted?

Answer 119

A3: An interim payment application requires detailed evidence, including the amount sought and its justification. It can be granted if liability is admitted, judgment is obtained but not quantified, or there’s a good chance of a substantial final judgment.

Example: A claimant in a personal injury case applies for an interim payment to cover urgent medical expenses after the defendant admits liability.

Question 120

Q4: Describe the process and requirements for obtaining an interim injunction.

Answer 120

A4: An interim injunction requires an application notice, often made urgently, and may require an undertaking in damages. It necessitates showing the matter’s urgency and that justice demands the injunction. It aims to prevent harm or preserve the status quo.

Example: Applying for a prohibitory injunction to stop a company from using stolen trade secrets pending the outcome of a intellectual property dispute.

Question 121

APPLICATION REQUIREMENTS

Answer 121

APPLICATION REQUIREMENTS
*
*
In writing
On notice (usually)
- As soon as practicable
- 3 days before hearing at least
* State what is being sought
* State why application is being sought

Question 122

How much notice typically is given to the respondent of an interim application?
* (A) 7 days
O (B) No notice need be given.
* (C) 3 days

Answer 122

(A) is incorrect - that is how long the respondent has to respond in the atypical case - the case where they were not given notice before the hearing on the application. (C) is correct.

Question 123

Summary

Answer 123

Summary Judgment by defendant - Claimant has no real prospect of succeeding on the claim or issue
Summary Judgment by claimant - Defendant has no real prospect of successfully defending on the claim or issue

Question 124

WRITTEN EVIDENCE MUST BE SERVED BY:

Answer 124

WRITTEN EVIDENCE MUST BE SERVED BY:
*Applicant at least 14 days before hearing
* Respondent at least 7 days before hearing
* Applicant at least 3 days before hearing when replying to respondent’s evidence

Question 125

“SUMMARY” OF SUMMARY JUDGMENT:

Answer 125

“SUMMARY” OF SUMMARY JUDGMENT:
Burden of proof on applicant
* Other party has no real prospect of prevailing
* No other compelling reason case should proceed

Question 126

What must the applicant show to obtain an order for summary judgement?

Answer 126

(1) The other party has no real chance of prevailing; and

(2) There is no other compelling reason why the case should proceed.

Question 127

!

Answer 127

Application for interim payment cannot be made until the time for filing the acknowledgement of service has expired

Question 128

WRITTEN EVIDENCE MUST CONTAIN:

Answer 128

WRITTEN EVIDENCE MUST CONTAIN:
*
*
Sum of money sought
Items and matters for which payment is sought
Estimate of a final judgment
In a personal injury case:
Medical reports and schedule of loss

Question 129

Do you remember the earliest date on which the application for an interim payment can be made?

Answer 129

When the time for filing an acknowledgement of service expires and not less than 14 days before the hearing.

Question 130

BASIC INJUNCTION TYPEs

Answer 130

BASIC INJUNCTION TYPEs
* Mandatory injunction: An order to do something
* Prohibitory injunction: An order to refrain from doing something

Question 131

Will damages compensate a buyer if a seller contracted to sell a one-of-a-kind painting to the buyer but then breached the contract by selling the painting to someone else?
* Yes
O NO

Answer 131

No

Question 132

GROUNDS FOR
DISCHARGING INJUNCTION

Answer 132

GROUNDS FOR
DISCHARGING INJUNCTION
* Material non-disclosure
* Failure of claimant to comply with terms on which injunction was granted
Facts do not justify injunctive relief
* Injunction was oppressive
* Material change in circumstances
* Failure of claimant to prosecute claim with due speed

Question 133

TO GRANT A FREEZING INJUNCTION:

Answer 133

TO GRANT A FREEZING INJUNCTION:
* There is a justifiable cause of action
* The defendant has assets within the jurisdiction
* There is a real risk that the defendant may dispose of or dissipate those assets before judgment can be enforced

Question 134

THREE BASIC GROUNDS:

Answer 134

THREE BASIC GROUNDS:
1. Strong prima facie case for underlying claim
2. Defendant’s activities must cause very serious potential or actual harm to the claimant’s interests
3. Clear evidence that property or documents are in the defendant’s possession and may be destroyed

Question 135

OVERSEEING SOLICITOR WILL:

Answer 135

OVERSEEING SOLICITOR WILL:
* Offer to explain meaning and effect of the order to defendant
* Inform the defendant of rights to seek legal advice and to apply to vary or discharge order
* Prepare a written report and provide it to claimant’s solicitors and the court

Question 136

CLAIMANT’S SOLICITOR WILL:

Answer 136

CLAIMANT’S SOLICITOR WILL:
* Return original documents to defendant within two days
* Deliver any property in dispute to defendant’s solicitors
* Retain securely all other property until court directs otherwise

Question 137

1. Which of the following is not a requirement for the court to grant a freezing injunction?
   * (A) The applicant has complied with the relevant pre-action protocol.
   O (B) There is a justifiable cause of action.
   * (C) The claimant has a good, arguable case.
   O (D) The defendant has assets within the jurisdiction.
   * (E) There is a real risk that the defendant may dispose of or dissipate those assets before judgment can be enforced.

Answer 137

A) is correct. The applicant need not show that they have complied with the relevant pre-action protocol. This is not required due to the urgency of an application for a freezing injunction and the need to avoid putting the defendant on notice. All of the other options are requirements.

Question 138

2. In which court is an application for a freezing injunction made?
   * (A) The court in which the case has been allocated.
   * (B) The County Court
   * (C) The Crown Court
   * (D) The High Court
   * (E) The Court of Appeal

Answer 138

(D) is correct. Applications for freezing injunctions are made to the High Court.

Question 139

3. True or False: Typically, an application for summary judgment can be made without notice to the opposing party.
   O True
   O False

Answer 139

False. Typically the applicant must serve notice of the application on the other party. Additionally, the application usually includes written evidence in support, which the applicant must serve on the other party at least 14 days before the hearing. If the respondent wishes to respond (and they usually do!) they must serve evidence in response at least 7 days before the hearing. And if the applicant wishes to reply to the respondent’s evidence, the applicant must serve any evidence in reply no later than 3 days before the hearing.

Question 140

4. True or False: An application for an interim payment may be made only after the court has finally determined liability of the paying party.
   O True
   O False

Answer 140

False. This is an order to pay money before a case has been finally determined. Courts have discretion to order an interim payment any time during the litigation, though a court usually won’t make such an order unless the court is satisfied that if the action proceeds to trial, the claimant would obtain judgment for a substantial sum.

Question 141

Q1: What is the difference between disclosure and inspection in the context of legal proceedings?

Answer 141

A1: Disclosure involves informing the other party about the existence and nature of relevant documents, while inspection allows the other party to examine these documents.
Example: A party discloses the existence of email communications for legal advice but inspection allows the actual content of these emails to be examined, unless protected by privilege.

Question 142

Q2: What types of documents must a party disclose during litigation?

Answer 142

A2: A party must disclose documents they rely on, documents that adversely affect their own case, documents that adversely affect the other party’s case, and documents that support the other party’s case.
Example: In a breach of contract case, a party would need to disclose the contract itself (relied upon), any internal communications admitting fault (adversely affects their case), and any correspondence from the other party that supports their position.

Question 143

Q3: What does it mean for a document to be ‘within a party’s control’ for disclosure purposes?

Answer 143

A3: A document is within a party’s control if they currently possess it, have a right to possess it, have a right to inspect or take copies of it, or had it but no longer do.
Example: A company must disclose not only the documents in their physical office but also those stored digitally on cloud services to which they have access.

Question 144

Q4: What is standard disclosure and what does it encompass?

Answer 144

A4: Standard disclosure requires parties to disclose documents they rely on, documents that adversely affect their case or the other party’s case, and documents that support the other party’s case.
Example: In a personal injury claim, the claimant would need to disclose medical reports they rely on, any pre-existing medical records that might affect their case, and any admissions by the defendant that support their claim.

Question 145

Q5: Explain legal advice privilege and provide an example.

Answer 145

A5: Legal advice privilege protects communications between a solicitor and client made for the purpose of giving or receiving legal advice.
Example: Emails between a client and their solicitor discussing the strengths and weaknesses of their case would be protected by legal advice privilege and not disclosed to the other party.

Question 146

Q6: What is litigation privilege and when does it apply?

Answer 146

A6: Litigation privilege covers communications between a solicitor and third parties, or the client and third parties, made for the purpose of preparing for actual or contemplated litigation, provided there is a real likelihood of litigation.
Example: A report prepared by an expert witness at the solicitor’s request regarding the damages in a case would be covered by litigation privilege.

Question 147

STANDARD DISCLOSURE

Answer 147

STANDARD DISCLOSURE
* Documents on which a party relies
* Documents that adversely affect their case

Question 148

Under standard disclosure in a malpratice claim against a former accountant for giving negligent tax advice, would the client have to disclose the retainer letter that the accountant sent to the client?
O Probably
O Probably not

Answer 148

Probably not

Question 149

Under standard disclosure in a malpractice claim against a former accountant for giving tax advice, do you think the CLIENT would have to disclose a copy of the accountant’s letter advising the client on how to arrange their affairs in the most tax efficient manner?
O Probably
O Probably not

Answer 149

Probably

Question 150

Under standard disclosure in a malpractice claim against a former accountant for giving negligent tax advice, do you think the accountant would have to disclose a letter sent to the client in response to the client’s complaint stating that the accountant had been under a lot of stress at the time of advising on the matter and may not have always given the case the attention it deserved?

O Probably
O Probably not

Answer 150

O Probably

Question 151

CONTROL:

Answer 151

CONTROL:
*
*
*
Documents parties possess
Documents parties have a right to possess
Documents parties may inspect or copy
Documents parties no longer have

Question 152

REASONABLE AND PROPORTIONATE:

Answer 152

REASONABLE AND PROPORTIONATE:
* Nature of case
* Its value
* Its importance

Question 153

STANDARD FORM HAS
THREE SECTIONS

Answer 153

STANDARD FORM HAS
THREE SECTIONS

*Documents in party’s control that it does not object to the other party inspecting
*Documents in the party’s control that it does object to the other party inspecting
*Documents no longer in the party’s control, stating when they were last in its control and where they are now

Question 154

PARTY MUST VERIFY AND SIGN:

Answer 154

PARTY MUST VERIFY AND SIGN:
* Detailing extent of search
* Declaring that they believe search reasonable
* Explaining why particular search was not made

Question 155

Automatic disclosure requires the disclosure of written documents on which the party will rely, but disclosure of emails requires specific disclosure.
O True
O False

Answer 155

This statement is false. This isn’t really a question about automatic disclosure vs specific disclosure, but rather it is a question about what we mean when we say disclosure of documents. That is something we covered at the very beginning of this module. It is important to remember that the term ‘documents’ includes papers, emails, electronic spreadsheets, and the like. The term specific disclosure refers to documents (in whatever form) that appear to be missing from a party’s standard disclosure documents.

Question 156

PRIVILEGES AND RELATED DOCTRINE

Answer 156

PRIVILEGES AND RELATED DOCTRINE
* Legal advice privilege between a solicitor and client

Question 157

PRIVILEGES AND RELATED
DOCTRINE

Answer 157

PRIVILEGES AND RELATED DOCTRINE
* Legal advice privilege between a solicitor and client
* Litigation privilege relates to preparation for contemplated or actual litigation

Question 158

In the table below, indicate whether each of the following statements attract:

A - Advice privilege
B - Litigation privilege
C - No form of privilege

1. A letter from John’s accountant outlining the scope of the work.
2. An email from John’s solicitor to John, providing preliminary advice on the merits of John’s claim.
3. A letter of instruction sent by John’s solicitor to an accountant expert witness regarding the evidence the solicitor is seeking.

Answer 158

1. C
2. A
3. B

Question 159

PRIVILEGES AND RELATED
DOCTRINE

Answer 159

PRIVILEGES AND RELATED
DOCTRINE
* Legal advice privilege between a solicitor and client
* Litigation privilege relates to preparation for contemplated or actual litigation
* Common interest privilege (unlikely to be tested)
* Without prejudice privilege - communication to another party with a view to settling the claim

Question 160

PRIVILEGES AND RELATED
DOCTRINE

Answer 160

PRIVILEGES AND RELATED
DOCTRINE
Public interest doctrine - inspection would harm the nation or administration of justice

Question 161

A company instructed their solicitor to issue proceedings against one of the company’s suppliers for breach of contract. The company’s solicitor drafted the contract. When the contract was being drafted, the solicitor exchanged drafts of it with the company’s sales team. The company stated that it does not want its supplier to see the emails between the solicitor and the sales team concerning the drafts.
Which of the following best states the legal position of disclosure of the emails?
* (A) The solicitor need not disclose the emails because they are privileged.
© (B) The solicitor need not disclose the emails because the company has not waived privilege.
* (C) The solicitor should disclose the emails in their disclosure statement, but they should assert a claim of privilege to prevent inspection.
(D) The solicitor should disclose the emails and provide copies to the supplier.

Answer 161

(C) The solicitor should disclose the emails in their disclosure statement, but they should assert a claim of privilege to prevent inspection.

Question 162

Q1: What is the standard of proof in civil cases, and how is evidence used to meet this standard?

Answer 162

A1: In civil cases, the standard of proof is the balance of probabilities. A claimant must prove that their version of events is more probable than not, using evidence such as documents and witness testimony.
Example: In a breach of contract case, the claimant uses the contract document and witness testimony to prove that the defendant failed to fulfill their contractual obligations.

Question 163

Q2: What must be included in a witness statement for civil litigation?

Answer 163

A2: A witness statement must include the witness’s evidence in the first person, their relationship to the party, and a statement of truth.
Example: A witness statement in a personal injury claim includes a detailed account of the accident from the claimant’s perspective and a statement of truth confirming the veracity of the testimony.

Question 164

Q3: How is hearsay evidence treated in civil litigation?

Answer 164

A3: Hearsay evidence is generally admissible, but the court may give it less weight. The party intending to rely on hearsay must provide notice.
Example: In an employment dispute, email communications between the employee and HR, not directly witnessed, are used as hearsay evidence to support the claim of unfair dismissal.

Question 165

Q4: What is legal advice privilege, and when does it apply?

Answer 165

A4: Legal advice privilege protects communications between a solicitor and client made for the purpose of giving or receiving legal advice.
Example: Emails between a client and their solicitor discussing legal strategies for an upcoming trial are protected under legal advice privilege and not disclosed to the opposing party.

Question 166

Q5: What constitutes hearsay evidence, and how must a party intending to use it proceed?

Answer 166

A5: Hearsay evidence includes any statement made outside of court that’s presented to prove the truth of its contents. Parties must give notice if intending to rely on hearsay evidence.
Example: In a property dispute, a letter from a previous owner claiming ownership of a disputed land feature is hearsay. The current owner must give notice of their intention to use this letter as evidence.

Question 167

THE STATEMENT MUST:

Answer 167

THE STATEMENT MUST:
* Include title of the case
* Indicate on whose behalf the statement was made
* Include the name and initials of the witness
* Indicate whether they are a party or employed by a party
* Set out the evidence the witness will adduce in the first person (for example *I saw this, I heard that”)
* Include a statement of truth

Question 167

IF STATEMEnT IS NOT MADE BY A PARTY

Answer 167

IF STATEMEnT IS NOT MADE BY A PARTY
Statement should set out:
Their relationship to the party
* That they have authority to make the statement
* That the statement is either from their own knowledge or matters of information or belief

Question 168

A party must disclose its draft witness statements to the other side.

True
False

Answer 168

True

The client will either rely on the statements, in the case of the witnesses they propose to call at trial, or the statements may be adverse to the client’s case, in which case they are unlikely to call the witness. But in either case, the drafts must be disclosed.

Question 169

HEARSAY

Answer 169

HEARSAY
* A statement
Made otherwise than by a person while giving oral evidence in proceedings
Which is tendered as evidence of matters stated

Question 170

In a trial for breach of contract, to prove the goods that were delivered did not conform to the contract, the buyer wants to testify in court that the lorry driver told the buyer to check the goods carefully, because when the driver picked the goods up from the seller, the seller told the driver: “Take those over there. I ran out of what the buyer ordered.”

Is the testimony hearsay?

Yes
No

Answer 170

Yes,

Let’s check it. Does it contain a statement made out of court? Yes, in fact it contains two out-of-court statements. First, the lorry driver said to check the goods carefully. Second, the lorry driver said that the seller said he was out of the goods ordered and the driver should take different goods. Are these statements being offered to prove the truth of what is being said in them? Yes, they are being offered to prove that the goods were not the goods ordered under the terms of the contract. Therefore, the testimony contains heresay.

Question 171

Because hearsay is made out of court and is not subject to cross-examination, it is unreliable and prohibted in civil cases.

True
False

Answer 171

False

The statement is mostly true, but the result is not. Hearsay statements are allowed in civil trials, but because they are not subject to cross-examination and are less reliable, it is open for the court to give hearsay statements less weight.

Question 172

IF WITNESS CANNOT
ATTEND TRIAL

Answer 172

IF WITNESS CANNOT
ATTEND TRIAL
The party relying on the statement:
* Must serve notice
* If witness statement served, still must explain absence
* If no statement served, must serve notice identifying hearsay evidence and explaining why witness will not be called

Question 173

IF WITNESS CANNOT
ATTEND TRIAL

Answer 173

IF WITNESS CANNOT
ATTEND TRIAL
The party served:
* Can make application to court to have witness attend
* Can serve notice to attack credibility of witness

Question 174

EFFECT OF ADMISSION OR
LACK OF ADMISSION

Answer 174

EFFECT OF ADMISSION OR
LACK OF ADMISSION
* If facts are admitted, no need to prove them
* If not admitted and proved at trial, the recipient of the notice to admit may be ordered to bear the cost of proving the fact

Question 175

Opinion evidence is never admissible.
True
False

Answer 175

False. Generally, a layperson may not testify to an opinion, but an expert can.

Question 176

A witness statement is hearsay.
True
False

Answer 176

True

Let’s test it. Is a statement made out of court offered to prove the truth of what is stated in the statement? Yes. Nevertheless, when a witness is in court and swears that the signature on the witness statement is theirs, the statement is now considered evidence in chief—as if the witness gave the evidence in court—and it is no longer hearsay.

Question 177

A claimant is suing a company for breach of contract. The company’s solicitors obtained a statement from the company’s shipping clerk, as it was the clerk who packed the goods that filled the claimant’s order. The statement was exchanged with the other side in the usual way, but before trial, the shipping clerk quit his job and moved to New York City to pursue a career of acting and waiting tables. What must the company’s solicitors do to ensure they can use the shipping clerk’s witness statement at trial?

(A) Explain why the witness cannot be called and make an application to the court to allow the use of the statement.
* (B) send a notice to the claimant explaining the witness cannot be called and explaining why, but

Answer 177

The correct answer is (B). An application to court is not required. Whilst the witness statement itself serves as notice that the defendant will be relying on hearsay, because the witness will not be in court, the defendant must notify the claimant of that fact and give reasons. In response, if the claimant happens to know the clerk did not move to New York and instead pursued their dream of acting and waiting tables in London’s West End, the claimant could make an application to the court within 14 days of receiving the notice for an order to the witness to attend the trial (if the claimant wants to cross-examine the witness).

Question 178

If a party serves a notice to admit a fact and their opponent refuses to admit the fact at trial, but still loses the case, are there any consequences?

(A) No, because the party lost the case despite proving the fact their opponent denied.
O (B) Yes, the party who proved the fact may be able to recover the costs of proving the fact.

Answer 178

(B) Yes, the party who proved the fact may be able to recover the costs of proving the fact.

The correct answer is yes, the party who proved the fact may be able to recover the costs of proving the fact. That’s the consequence—the winning party may be forced to pay some of the losing party’s costs.

Question 179

What is ‘without prejudice correspondence’?

Answer 179

It is pretty much what it sounds like—correspondence sent by one party to another labelled as being ‘without prejudice’, and usually made with an eye toward settling the claim in some way. By labelling the claim ‘without prejudice’, the receiving party may not use the contents of the communication as evidence.

Question 180

WHO IS AN EXPERT

Answer 180

WHO IS AN EXPERT
A person who has been instructed to give or prepare expert evidence for the purpose of proceedings
It can be anyone with knowledge or experience of a particular field or discipline

Question 181

Question: What qualifies a person as an expert in civil proceedings?

Answer 181

Answer: A person can qualify as an expert based on their knowledge, experience, education, or training in a particular field relevant to the case. For example, a structural engineer could serve as an expert in a case involving building defects.

Question 182

Question: What are the restrictions on the opinion evidence that an expert can provide?

Answer 182

Answer: The opinion must be based on the expert’s specialized knowledge and not on common knowledge, must be provided with a reasonable degree of certainty, and the expert must demonstrate the basis of their opinion. For instance, a forensic accountant may provide an opinion on financial discrepancies in a fraud case, detailing their methodology and the data analyzed.

Question 183

Question: What ethical obligations do experts have in civil proceedings?

Answer 183

Answer: Experts owe a duty to the court that overrides any obligation to the instructing party, must remain objective and independent, and must ensure their evidence is not beyond scientific limitations. For example, a medical expert must impartially analyze and present the medical condition of a claimant in a personal injury case, regardless of who has hired them.

Question 184

Question: What must be included in an expert’s report for it to be considered in court?

Answer 184

Answer: An expert’s report must include their qualifications, the instructions received, the methodology used, any literature referred to, a declaration of their duty to the court, and a statement of truth. For instance, a biomechanics expert’s report in a slip and fall case would detail their analysis of the incident, including any simulations or tests conducted.

Question 185

Question: How is expert evidence examined in court, and what is “hot tubbing”?

Answer 185

Answer: Expert evidence is usually presented through their written report and may include oral testimony if directed by the court. “Hot tubbing” refers to the concurrent examination of experts from both sides in court to clarify issues. For example, in a complex construction dispute, structural engineers from both sides may be examined together to discuss the technical aspects of the failure.

Question 186

Question: What is the purpose of a without prejudice meeting between experts, and what is its outcome?

Answer 186

Answer: The purpose is for experts to discuss the issues in the case, identify areas of agreement and disagreement, and attempt to narrow down the disputed issues. The outcome is a joint statement summarizing the agreed and disagreed points. For example, environmental experts in a pollution case might meet to agree on the baseline environmental conditions before discussing the impact of the alleged pollution.

Question 187

Can a carpenter who has never attended university serve as an expert in a case?

yes
no

Answer 187

Yes, if the case requires an expert opinion on a carpentry matter. For example, if an issue in a case is whether a builder properly framed an extension to the claimant’s house, a carpenter who never attended university could testify whether he believes the extension was properly framed.

Question 188

Is a court likely to permit an expert to testify about the proper way to handle a conveyancing transaction?
O Yes
O NO

Answer 188

No

Question 189

Expert REQUIREMENTS:

Answer 189

REQUIREMENTS:
* Opinion must not be within the ordinary experience of a judge
* Expert must have true expertise in the field
* Expert must give evidence to a reasonable degree of certainty
* Expert must demonstrate basis of opinions and conclusions

Question 190

Which of the following is not a requirement of expert testimony?
* (A) The expert must be reasonably certain about their opinion or conclusion.
* (B) The expert must be certified as an expert.
* (c) The matter in issue must not be within the ordinary experience of the judge.
O (D) The expert must be able to demonstrate the basis of their opinion.

Answer 190

B

The expert need not be certified as an expert. There must be some basis for showing they have expertise, such as training, a degree, working in the field, and so on, but a formal certification is not required.

Question 191

An expert must testify in the best possible light for the party who instructed them.
O True
O False

Answer 191

False. It is very important to remember that expert witnesses do not owe a duty to those who instruct them. Instead, they owe the court a duty of integrity and independence.

Question 192

FOR EXPERT TO GIVE ORAL EVIDENCE

Answer 192

FOR EXPERT TO GIVE ORAL
EVIDENCE
* Evidence must be likely to impact outcome
* Evidence must assist the judge
* Risk of injustice if not tested
* Costs are not disproportionate

Question 193

Let’s be sure the basic rule sinks in:
Usually, an expert will give live testimony in court.
* True
O False

Answer 193

False. Usually only the expert’s written report will be used. The court will allow live testimony from an expert only if live testimony will likely impact the outcome, assist the judge, and the costs are not disproportionate; otherwise, injustice may result.

Question 194

Typically, each party is free to call their own experts in a case.
O True
O False

Answer 194

False. To call an expert witness, permission must be sought from the judge at a Case Management Conference. A joint expert will be encouraged, but in complex cases, each party will usually be granted permission to have their own expert testify. Keep in mind that regardless of who hires the expert, the expert still owes a duty of integrity and independence to the court.

Question 195

A solicitor sent written questions to the other side’s expert three months after receipt of the expert’s report. Must the expert respond?
O Yes
O NO

Answer 195

No. The request was inappropriate because it was made out of time. The deadline for submitting questions is within 28 days of service of the report. If the solicitor felt they needed more time to persue the report and formulate questions, they should have applied to the court for an extension, stating their reasons.

Question 196

A large, online retail company is suing a conveyor belt company for breach of contract. The claim alleges that the conveyor belt company designed and installed a system that was slower and less reliable than provided for in the contract and that, as a result, the online retailer will lose several million pounds of productivity over the life of the system. The retailer requests permission to call their own expert, at a cost of approximately £10,000.
Is the court likely to allow the parties to call their own experts?
* (A) Yes, because the case is complicated, and the cost would not be disproportionate.
O (B) Yes, because a party may instruct its own expert as a matter of right.
O (C) No, because although the case is complicated, £10,000 is disproportionate.
O (D) No, because a single joint expert is the default unless compelling circumstances dictate otherwise.

Answer 196

(A) is the correct answer. In a case involving large sums of money and complex manufacturing issues, separately instructed experts are likely. Proportionality is a common argument used to justify a party calling its own expert. (B) is incorrect because this is not a true statement—parties do not have a right to call expert witnesses and must always seek permission from the court. (C) is incorrect. It forces you to make a judgment call between it and (A). Usually, the examiners will not make you make a judgment call based on facts, but they will if the call is obvious. £10,000 vs several million pounds would be a proportionate cost. The first part of (D) is true, but it does not take ‘compelling’ circumstances for a court to allow parties to call their own experts. In deciding whether to allow ‘own experts’, the court will balance the circumstances, considering things such as the value of the case, the complexity of the issues, whether costs are proportionate, whether the testimony goes to the heart of the dispute, and whether there is more than one school of thought about the issue in question.

Question 197

3. In a case where the court approved each side to have an expert, the claimant instructed their expert to attend a without prejudice meeting. The expert had never before attended this type of meeting. To avoid following an incorrect procedure, the expert asked the solicitor who hired them to also attend the meeting, so that the solicitor could advise the expert on the ordinary procedure at the meeting.
   Under these circumstances, is it proper for the solicitor to attend the without prejudice meeting for the limited purpose of advising the expert on the normal procedure of such a meeting?
   O Yes
   O NO

Answer 197

No

It is inappropriate for a solicitor to attend the expert’s meeting. It doesn’t matter that the request has come from the expert and is limited to procedural advice.

Question 198

What is a Tomlin Order?

Answer 198

Answer: A Tomlin Order is a consent order that outlines agreed settlement terms, staying the proceedings while allowing the case to be reopened if the settlement terms are not fulfilled, avoiding the need to start new proceedings.
Example: If two businesses settle a dispute over a contract breach, they might use a Tomlin Order to agree that one party will pay damages to the other, with the case staying on hold unless the payment is not made as agreed.

Question 199

What is the purpose of a pre-trial review?

Answer 199

Answer: A pre-trial review ensures parties are prepared for trial, checking compliance with court orders, approving the trial timetable, giving case management directions, ordering trial bundle preparation, and setting the trial date if not already done.
Example: In a complex property dispute, a pre-trial review might be used to ensure both parties have exchanged all necessary documents, witness lists are finalized, and any outstanding issues are resolved before trial.

Question 199

What is the role of a witness summons?

Answer 199

Answer: A witness summons is a court order that requires a witness to attend court to give evidence. It ensures witness attendance at trial, and failure to comply can result in contempt of court charges.
Example: In a personal injury case, a witness who saw the accident might be reluctant to come to court. A witness summons can be used to legally oblige them to attend and share their testimony.

Question 200

How are witnesses examined in court?

Answer 200

Answer: Witnesses are examined through evidence-in-chief, where they confirm their witness statement; cross-examination, where the opposing side questions them to challenge their testimony; and re-examination, to clarify points from cross-examination.
Example: In a defamation trial, the claimant’s witness might first confirm their statement (evidence-in-chief), then be questioned by the defendant’s lawyer to challenge their account (cross-examination), and finally be asked additional questions by the claimant’s lawyer to clarify any issues raised (re-examination).

Question 201

What happens after the judge’s judgment in a trial?

Answer 201

Answer: Post-judgment, parties may address issues related to interest on the judgment sum, costs of the proceedings, requests for time to pay the judgment sum, stays of execution if an appeal is intended, and applications for permission to appeal the judgment.
Example: After losing a breach of contract trial, the defendant might request a stay of execution to appeal the decision, argue for lower costs due to mitigating factors, and seek a payment plan to fulfill the judgment sum over time.

Question 202

True or False: A Tomlin order is required whenever the parties settle their case without going to trial.
O True
O False

Answer 202

False. A Tomlin order is a really good idea, but it is not required. It formalises the parties’ settlement by recording its terms and having the court issue the settlement as a consent order. This gives the parties a right to enforce their agreement in court, or to pick up proceedings where they left off should a party fail to comply.

Question 203

PARTIES SHOULD FILE
PRE-TRIAL CHECKLISTS TO:

Answer 203

PARTIES SHOULD FILE
PRE-TRIAL CHECKLISTS TO:
* Confirm what has been done to date
* Provide opportunity to re-estimate trial time
* Ascertain whether parties have legal representation
* Confirm trial length estimate
* Prepare draft directions if required

Question 204

WITNESS SUMMONS TO COMPEL ATTENDANCE

Answer 204

WITNESS SUMMONS TO COMPEL ATTENDANCE
* Under penalty of contempt of court
* At least 7 days before trial

Question 205

1. Do you think this £67 witness fee applies to expert witnesses?
   * Yes
   O NO

Answer 205

Expert witnesses may be paid their normal costs for attending trial.

Question 206

2. Do you think the £67 fee can be paid to the claimant’s brother-in-law (whom the claimant wants to call as an eyewitness) if the claimant’s brother-in-law will have to take off a day of work to attend trial and they are not entitled to pay from their employer if they take off a day of work?
   O Yes
   O NO

Answer 206

Yes. Don’t be swayed by the fact the witness is related to the claimant; he would be entitled to the conduct money.

Question 207

The number thing again. Just to ensure this testable piece of trivia sinks in:
Who prepares the trial bundles and how many must be prepared?
* (A) Both parties must prepare at least three bundles each.
* (B) Only the claimant must prepare the bundles, and there must be at least three: one for the court, one for the defendant, and one for themselves.
* (C) The defendant prepares six bundles.
* (D) The claimant prepares six bundles.

Answer 207

(D) is correct. The claimant prepares at least six bundles (more, if there is more than one defendant).

Question 208

TRIAL BUNDLE

Answer 208

TRIAL BUNDLE

Statements of Case
Key disclosures
Witness statements
Expert evidence
In a single bundle

Question 209

Would you please confirm it is your name and signature on the witness statement?

Is this statement:
* (A) Examination in chief
* (B) Cross-examination
* (C) Re-examination

Answer 209

A

Question 210

Is it possible that you were mistaken in your recollection of that meeting?

Is this statement:
* (A) Examination in chief
* (B) Cross-examination
* (C) Re-examination

Answer 210

B

Question 211

You told my friend that you weren’t wearing your glasses on the day in question.
Would you please confirm the purpose for which you wear glasses?

Is it possible that you were mistaken in your recollection of that meeting?

Is this statement:
* (A) Examination in chief
* (B) Cross-examination
* (C) Re-examination

Answer 211

C

Question 212

What is A Tomlin Order?

Answer 212

A Tomlin Order is a consent order that outlines agreed settlement terms, staying the proceedings while allowing the case to be reopened if the settlement terms are not fulfilled, avoiding the need to start new proceedings.

Question 213

What is conduct money?

Answer 213

Money that must be included with an application to a court to issue a witness summons to reimburse a witness for the costs of attending trial, including up to £67 for loss of time if more than four hours are required. If an overnight stay will be required, funds for meals and lodgings must also be included.

Question 214

What is a pre-trial review case summary?

Answer 214

A pre-trial review case summary is a written report of no more than 500 words, that the parties give the court at the pre-trial review that summarises the facts involved, explains what is agreed and disagreed by the parties, and provides a synopsis of the evidence that will be required at trial.

Question 215

Rank the following events in the order they typically would occur in court, by numbering them 1-6.

1. Claimant’s witness gives evidence.
2. Claimant’s expert gives evidence.
3. Defendant’s opening submission.
4. Claimant’s re-examination of their witness.
5. Claimant’s opening submission.
6. Defendant’s cross-examination of claimant’s witness.

Answer 215

1 3
2 6
3 2
4 5
5 1
6 4

Question 216

What is the first step to take if you disagree with a court’s decision?

Answer 216

Answer: Seek permission to appeal from the judge who made the decision or the court that would hear the appeal.
Example: If a District Judge in the County Court makes a decision you disagree with, your first step is to seek permission to appeal from that District Judge or a Circuit Judge in the County Court.

Question 216

What are the two grounds for an appeal?

Answer 216

Answer: The decision was wrong in law, fact, or discretion, or the decision is unjust due to serious procedural irregularities.
Example: If a judge incorrectly applied a legal principle leading to an unfavorable judgment, you can appeal on the ground that the decision was wrong in law.

Question 217

What must be included in a witness summons for it to be effective?

Answer 217

Answer: The court fee, money to cover the witness’s expenses for attending the trial, and money to reimburse the witness for lost income due to their attendance.
Example: If you summon a witness who will miss a day of work, you must include not only the court fee but also travel expenses and compensation for the day’s lost income.

Question 218

Under what circumstances can the Court of Appeal grant permission to appeal retrospectively?

Answer 218

Answer: If the appellant can persuade the court of the reasonableness of the appeal, even if the 21-day period for filing an appeal has passed without an extension being granted.
Example: If you missed the appeal deadline due to receiving incorrect legal advice, the Court of Appeal might still grant permission to appeal if you can demonstrate the appeal’s merit.

Question 219

What is the Standard of Review in an appeal?

Answer 219

Answer: The appellate court conducts a review of the lower court’s decision rather than a rehearing, generally limiting evidence to what was available at the original trial unless permission is granted for additional evidence.
Example: If appealing a High Court judge’s decision to the Court of Appeal, the appeal will focus on reviewing the decision’s legality rather than re-examining all the case’s evidence.

Question 220

What happens if a party fails to seek an appeal within the 21-day period?

Answer 220

Answer: They may apply to the Court of Appeal for retrospective permission, but this is treated as an application for relief from sanctions.
Example: If you apply for an appeal 30 days after the judgment without having obtained an extension, you must convince the Court of Appeal of the appeal’s validity and the reason for the delay.

Question 221

Choose the correct statement:
O (A) A County Court District
Judge hears appeals from a County Court Circuit Judge.
O (B) A County Court Circuit
Judge hears appeals from a County Court District Judge.

Answer 221

(B) is correct. A Circuit Judge is higher than a District Judge. It might help to remember these are alphabetically backwards.

Question 222

GROUNDS FOR APPEAL

Answer 222

GROUNDS FOR APPEAL
* Wrong in fact, law, or the exercise of discretion
* Unjust because of procedural errors

Question 223

Do you remember how long a party has to appeal and which courts can grant permission to appeal the case?

Answer 223

A party has 21 days to appeal. The court in which the case was tried and the court to which the case will be appealed can grant permission to appeal the case.

Question 224

A judge, after correctly reciting the evidence, states within his judgment that having heard all the claimant’s and defendant’s evidence on a particular point (such as what was agreed at a specific meeting between the parties), he preferred the claimant’s evidence.
Is this a valid ground for appeal?
Yes or No?

Answer 224

No

Question 225

THE COURT OF APPEAL WILL
LOOK AT

Answer 225

THE COURT OF APPEAL WILL
LOOK AT
* Seriousness and significance of failure to comply with rules
*
Why default occurred
Surrounding circumstances

Question 226

APPEALS

Answer 226

APPEALS
*
*
Not a rehearing
No new evidence

Question 227

Which of the following statements regarding appeals is true?
O (A) The 21-day period for appeals may not be extended.
O (B) In a case initiated in the County Court before a Circuit
Judge, the failure to timely request an appeal at the County Court or High Court precludes further review of the case.
O (c) A request for application to appeal may be made orally before the judge who tried the case.
* (D) The Court of Appeal hears all appeals.
O (E) Discretionary decisions made by the trial judge may not be appealed.

Answer 227

c

Question 228

What is the general rule regarding litigation costs?

Answer 228

Answer: The loser pays the winner’s costs, including solicitor’s fees and disbursements.

Question 229

Under what circumstances can the court depart from the general rule on costs?

Answer 229

Answer: Non-compliance with pre-action protocols, failure to accept Part 36 offers, claim exaggeration, or partial success.

Question 230

What is the indemnity principle in the context of litigation costs?

Answer 230

Answer: A party cannot recover more from the opponent than what they owe their own legal representative.

Question 230

Describe the difference between standard and indemnity basis for assessing costs.

Answer 230

Answer: Standard basis considers only proportionate costs and resolves doubts in favor of the paying party, whereas indemnity basis does not consider proportionality and resolves doubts in favor of the receiving party.

Question 231

What is a cost management order and its significance in multitrack cases?

Answer 231

Answer: A court order setting a budget for the parties’ costs, which should not be exceeded by more than 20% to avoid penalties during cost assessments.

Question 232

What is a security for costs order and when can it be requested?

Answer 232

Answer: An order requiring the claimant to pay money into court or secure a bond, requested by the defendant if there’s concern the claimant can’t pay if they lose.

Question 233

What are the exceptions to the general rule on recoverable costs in small claims and fast track cases?

Answer 233

Answer: Limited recoverable legal costs, with small claims generally allowing no order for legal costs and fast track cases having fixed costs for the trial.

Question 234

The indemnity principle is a guideline not a rule.
O True
O False

Answer 234

false

The indemnity principle is a rule with no exceptions. Again, under the indemnity principle, a court will not order payment of costs greater than a party’s actual costs.

Question 234

What constitutes grounds for a wasted costs order against a solicitor?

Answer 234

Answer: Improper, unreasonable, or negligent actions by the solicitor causing unnecessary costs.

Question 235

STANDARD BASIS
INDEMNITY BASIS

Answer 235

STANDARD BASIS
* Default basis
* Recover proportionate cases only

• Benefit of doubt given to paying party

INDEMNITY BASIS
Generally used for misconduct
* Proportionality not considered

• Benefit of doubt given to receiving
  party

Question 236

If a court awards costs on the standard basis, it will allow recovery only of proportionate costs; any doubt whether an item is proportionate is given to the receiving party.
O True
O False

Answer 236

False. The first part of the statement is true. If a court awards costs on the standard basis, it will allow recovery only of proportionate costs. But the second part is false—if costs are payable on the standard basis, any doubt is given to the paying party (not the receiving party). The receiving party is given the benefit of doubt if costs are assessed on an indemnity basis

Question 237

SUMMARY ASSESSMENT

Answer 237

SUMMARY ASSESSMENT
*
*
*
Summary assessment made at conclusion of hearing
Usually payable in 14 days of hearings
Receiving party entitle to interest from judgment to payment

Question 238

DETAILED ASSESSMENT

Answer 238

DETAILED ASSESSMENT
*
*
*
Parties are unable to agree to a figure
Receiving party prepares detail bill of costs and serves on opponent
Opponent files ‘points of dispute

Question 239

How long does the winning party have to serve a detailed bill of costs if a court orders a detailed assessment of costs and the parties cannot agree costs?

Answer 239

Usually three months. The other party will then have 21 days to file their points of dispute.

Question 240

If either party is concerned that the other party will not be able to pay costs should they lose, the concerned party may make an application to the court to have the other party post security for costs.
O True
* False

Answer 240

False. A security for costs order can be sought only by the defendant.

Question 241

WASTED COSTS ORDER

Answer 241

WASTED COSTS ORDER
* Legal representative acted improperly, unreasonably, or negligently
Which caused unnecessary costs AND
* It is just to make the order

*Solicitor pays!

Question 242

1. Under the one-way cost-shifting rule, which of the following best reflects the legal position?
   * (A) A claimant will not be required to pay the defendant’s costs in
   a contract case unless certain conditions are met.
   * (B) A claimant will not be required to pay the defendant’s costs in a personal injury claim unless certain conditions are met.
   * (C) A defendant will not be required to pay the claimant’s costs in
   a contract case unless certain conditions are met.
   O (D) A defendant will not be required to pay the claimant’s costs.

Answer 242

• (B) A claimant will not be required to pay the defendant’s costs in a personal injury claim unless certain conditions are met.

Question 243

Against whom may a wasted costs order be issued?
* (A) A claimant only
* (B) A defendant only
* (C) A party’s solicitor only
O (D) Any of the above

Answer 243

• (C) A party’s solicitor only

Question 244

Under which cost basis does the court not consider the proportionality of the cost?
* (A) Indemnity Basis
* (B) Standard Basis

Answer 244

• (A) Indemnity Basis

Question 245

Q: What is a Part 36 offer?

Answer 245

A: A Part 36 offer is a formal settlement offer made under CPR Part 36, with specific cost implications if not accepted and the offeror’s terms are met or exceeded at trial.

Question 246

Q: What are the key formal requirements of a Part 36 offer?

Answer 246

A: It must be in writing, state it’s made under Part 36, specify a relevant period of at least 21 days, and indicate whether it’s for the whole or part of the claim.

Question 247

Q: When can a Part 36 offer be accepted, and what are the cost implications?

Answer 247

A: It can be accepted at any time unless withdrawn. If accepted within the relevant period, the defendant pays the claimant’s costs up to acceptance. After the relevant period, court decides costs from the end of that period.

Question 248

Q: What happens if a claimant rejects a defendant’s Part 36 offer and wins less at trial?

Answer 248

A: The claimant may have to pay the defendant’s costs from the end of the relevant period, in addition to their own costs incurred after this period.

Question 249

Q: What are the consequences if a defendant rejects a claimant’s Part 36 offer and the claimant wins the same or more at trial?

Answer 249

A: Enhanced sanctions against the defendant may apply, including higher interest rates on damages and costs, and additional damages.

Question 250

Q: How does the court exercise discretion in applying Part 36 sanctions?

Answer 250

A: The court considers all case circumstances, including the timing and terms of the offer, the information available when the offer was made, and the parties’ conduct regarding information exchange.

Question 251

What is the minim length?

Answer 251

The relevant period is the period during which a Part 36 offer cannot be withdrawn. The minimum period is 21 days.

Question 252

Just to ensure you caught this important legal fact:
A Part 36 offer can be made at any time, even before proceedings have been issued.
* True
O False

Answer 252

True It’s important to remember this. I can easily see this coming up in a question on the SQE and it is important to know this when you are practising law, too.

Question 253

On 1 July, the defendant in a case makes a Part 36 offer to settle. The offer states that it will not be withdrawn for 21 days. Neither party takes any further action on the offer until 30 July, when the claimant sends a written letter accepting the offer.
Has the claimant validly accepted the offer?
O Yes, because the offer had not been
withdrawn.
O No, because the acceptance came after the relevant period expired.

Answer 253

O Yes, because the offer had not been
withdrawn.

The acceptance was valid because the offer had not been withdrawn.

Question 254

Do you think the result would be different if the offer stated that it would automatically be withdrawn after 21 days?
O Yes
O NO

Answer 254

In this case—where the offer says it will be considered withdrawn at expiry of the relevant period—the offer would have been withdrawn and the claimant could no longer accept.

Question 255

Indicate the impact of the rejection of the Part 36 offer in the following scenarios, assuming no other offer was made.

1. Defendant makes a Part 36 offer for £20,000, claimant rejects and recovers £15,000 at trial.

(A) The normal rules for costs
apply.
O (B) The claimant will have to
pay the defendant’s costs on the standard basis from the date the relevant period expired.
O (c) The defendant will have to pay the claimant’s costs on the standard basis from the date the relevant period expired.
O (D) The defendant will have to pay enhanced interest from the date the acceptance expired; costs for that period will be assessed on an indemnity basis and additional damages may be imposed.

Answer 255

B

In a case where the claimant does not beat the defendant’s offer, the claimant will have to pay the defendant’s costs on the standard basis from the date the relevant period expired.

Question 256

2. Defendant makes a Part 36 offer for £20,000, claimant rejects and recovers £25,000 at trial.
   * (A) The normal rules for costs
   apply.
   * (B) The claimant will have to pay the defendant’s costs on the standard basis from the date the relevant period expired.
   O (c) The defendant will have to pay the claimant’s costs on the standard basis from the date the relevant period expired.
   * (D) The defendant will have to pay enhanced interest from the date the acceptance expired; costs for that period will be assessed on an indemnity basis and additional damages may be imposed.

Answer 256

A

In a case where the claimant beats the defendant’s offer, the normal rules for costs apply: the defendant will have to pay the claimant’s costs for the entire case on the standard basis.

Question 257

Claimant makes a Part 36 offer for
£20,000, defendant rejects, and claimant recovers £15,000 at trial.
* (A) The normal rules for costs
apply.
O (B) The claimant will have to
pay the defendant’s costs on the standard basis from the date the relevant period expired.
O (c) The defendant will have to pay the claimant’s costs on the standard basis from the date the relevant period expired.
O (D) The defendant will have to pay enhanced interest from the date the acceptance expired; costs for that period will be assessed on an indemnity basis and additional damages may be imposed.

Answer 257

A

In a case where the claimant fails to beat its own offer, the normal rules for costs apply: the defendant will have to pay the claimant’s costs for the entire case on the standard basis.

Question 258

Claimant makes a Part 36 offer for
£20,000, defendant rejects, and claimant recovers £25,000 at trial.
O (A) The normal rules for costs
apply.
* (B) The claimant will have to pay the defendant’s costs on the standard basis from the date the relevant period expired.
O (c) The defendant will have to pay the claimant’s costs on the standard basis from the date the relevant period expired.
* (D) The defendant will have to pay enhanced interest from the date the acceptance expired; costs for that period will be assessed on an indemnity basis and additional damages may be imposed.

Answer 258

D

In a case in which the claimant beats its own offer, the claimant is entitled to interest on the entirety of the claim at an enhanced rate of up to 10% above base rate for the time after the acceptance period expired. Costs for this period will be assessed on an indemnity basis (that is where the court gives any doubt whether costs were reasonable to the receiving party), with enhanced interest on those costs of up to 10% above base rate. The claimant may seek an additional amount of damages (generally 10% above the court award for amounts up to £500,000, and 5% for amounts above £500,000).

Question 259

Question: What happens after a judgment is made in favor of one party in a dispute resolution case?

Answer 259

Answer: The winning party becomes the judgment creditor, and the losing party becomes the judgment debtor. The creditor must then take steps to enforce the judgment if the debtor does not pay voluntarily.

Question 260

Question: What is the process called when a judgment creditor seeks to take control of the judgment debtor’s goods?

Answer 260

Answer: Taking Control of Goods. This process involves an enforcement officer seizing the debtor’s possessions to satisfy the debt, excluding items essential for the debtor’s trade or basic domestic needs.

Question 261

Question: How can a judgment creditor target funds held by a third party for the judgment debtor?

Answer 261

Answer: Through a Third-Party Debt Order, the court directs a third party, like a bank, to pay the creditor instead of the debtor.

Question 262

Question: What enforcement option allows a judgment creditor to secure a debt against the judgment debtor’s property?

Answer 262

Answer: Obtaining a charge on the debtor’s property, which acts as an equitable mortgage and can lead to an order for sale of the property.

Question 263

Question: Can a judgment creditor enforce a Court of England and Wales judgment against a debtor residing outside England and Wales?

Answer 263

Answer: Yes, but generally only if there is a reciprocal enforcement agreement between England and Wales and the debtor’s country of residence.

Question 264

Question: What is a Controlled Goods Agreement in the context of Taking Control of Goods?

Answer 264

Answer: It’s an agreement where the judgment debtor retains custody of their possessions under the condition that they won’t sell them before the debt is paid, thus avoiding the actual seizure of goods.

Question 265

Which of the following assets do you think the enforcement officer could seize?
(check all that apply)
(A) A laptop computer that the painter uses to play games.
* (B) A luxury pillow-top mattress on the painter’s
bed.
* (C) A set of ladders the painter uses to paint the exterior of houses.
* (D) A suit the painter wears to special occasions such as weddings.

Answer 265

(A) A laptop computer that the painter uses to play games.

• (D) A suit the painter wears to special occasions such as weddings.