DR Flashcards
Rank the following, 1 being the most senior court, 4 being the least senior court.
1 Supreme Court
2 Court of Appeal
3 High Court
4 County Court
Rank the following, 1 being the most senior type of judge, 4 being the least senior type of judge.
4 District Judge
3 Recorder
2 High Court Judge
1 Justice of the Supreme Court
C wishes to bring a personal injury claim against a retailer following an accident in a shop. The claim is valued at £75,000. What is the best advice to give C about whether to issue a claim in the County Court or the High Court?
The claim must be issued in the County Court.
The claim should be issued in the Chancery Division of the High Court.
The claim should be issued in a specialist division of the County Court.
The claim can be issued in either the County Court or the High Court.
The claim must be issued in the High Court.
The claim can be issued in either the County Court or the High Court.
Correct. As this is a personal injury claim exceeding £50,000, both the County Court and High Court have jurisdiction. You will need to consider the factors of the value, complexity and importance to the public when making a final decision about whether to issue in the County Court or the High Court.
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Property, Trusts and Probate List
Commercial Court
Chancery: Property, Trusts and Probate List
QBD: Commercial Court
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Technology and Construction Court
Revenue List
QBD: Technology and Construction Court
Chancery: Revenue List
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Administrative Court
Insolvency and Companies List
QBD: Administrative Court
Chancery: Insolvency and Companies List
Is the specialist court / list part of the Queen’s Bench Division or the Chancery Division?
Intellectual Property List
Planning Court
QBD: Planning
Chancery: IP List
Which specialist court / list is most suitable for which claim?
A dispute about the financial consequences of the delayed installation of a complex computer system.
A claim seeking a judicial review of a decision to remove funding from a GP practice.
A dispute between the two main shareholders of a company about their rights in relation to the company
A complex, international and high value dispute about an alleged fraud committed by a company against corporate investors.
Possible answers:
Administrative Court.
Commercial Court.
Commercial Court.
Technology and Construction Court.
A dispute about the financial consequences of the delayed installation of a complex computer system. – Technology and Construction Court.
A claim seeking a judicial review of a decision to remove funding from a GP practice. – Administrative Court.
A dispute between the two main shareholders of a company about their rights in relation to the company –
A complex, international and high value dispute about an alleged fraud committed by a company against corporate investors. – Commercial Court.
The general rule in relation to costs is that…
The court has a discretion to determine whether one party will pay the other party’s costs.
The unsuccessful party will be ordered to pay the costs of the successful party.
The party paying costs is stipulated in the CPR.
Each party will bear its own costs.
The unsuccessful party will be ordered to pay the costs of the successful party.
This is the general rule. In terms of the other answers, it is correct that the court has a discretion to determine whether one party will pay the other party’s costs, but this is not what you would describe as a ‘general rule’. It is very occasionally true that the party paying costs is stipulated in the CPR, but this is the exception rather than the rule.
If the court has ordered that one party will pay the costs of another party, the court will also need to put a figure on those costs. When it is deciding this figure, it will generally only allow recovery of…
…a reasonable and proportionate sum.
…a sum which is proportionate to the value of the claim.
…a reasonable sum.
…a reasonable and proportionate sum.
Correct
A wholesaler brings a breach of contract claim against a manufacturer. The wholesaler incurs costs of £85,000 in bringing this claim. What is the best advice to give to the wholesaler in relation to the cost consequences of the wholesaler succeeding at trial?
The wholesaler is likely to recover £85,000 in relation to costs.
The wholesaler is likely to be awarded its costs, but not the full £85,000.
The wholesaler may recover its costs, and they will be assessed at less than £85,000.
The wholesaler will recover £85,000 in relation to costs.
The wholesaler is likely to be awarded its costs, but not the full £85,000.
Correct. The general rule indicates that the wholesaler should recover its costs, so this is the ‘likely’ outcome on the facts presented, but the court will assess these costs, so it is unlikely that the full £85,000 will be recovered.
In which one of the following circumstances will the Court of Appeal be bound by a previous Court of Appeal judgment on the same issue?
Where the Court of Appeal considers an earlier Court of Appeal decision to have been given per incuriam.
Where the Court of Appeal decision conflicts with a Supreme Court Decision
Where the Court of Appeal does not agree with an earlier Court of Appeal decision
Where the Court of Appeal considers it would be in the interests of justice to depart from an earlier Court of Appeal decision.
Where the Court of Appeal is faced with two earlier conflicting Court of Appeal decisions
Where the Court of Appeal does not agree with an earlier Court of Appeal decision
Correct. This answer is incorrect. Young v Bristol Aeroplane sets out the three circumstances where a Court of Appeal can depart from a previous Court of Appeal judgement on the same issue.
Which one of the following would be a binding precedent in the Magistrates Court?
A decision of the Court of Appeal
A decision of the Crown Court
A decision of the County Court.
A dissenting judgment in the High Court
An obiter dicta in a decision of the Supreme Court
A decision of the Court of Appeal
Correct. Check your materials on the Rules of Precedent.
Which one of the following statements is incorrect?
The Supreme Court is bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
The Supreme Court in its Practice Statement of 1966 recognises too rigid adherence to precedent may lead to injustice and unduly restrict the proper development of the law.
The Supreme Court in departing from a previous judgement will bear in mind the danger of disturbing retrospectively the basis on which contract, settlement of property and fiscal arrangements have been entered into and the need for certainty as to the criminal law.
The Supreme Court is not bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
The Supreme Court was bound by its previous decisions before the Practice Statement of 1966. It sees the use of precedent as an indispensable foundation which provides legal certainty and allows the orderly development of legal rules.
The Supreme Court is bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
The Supreme Court is bound by its previous decisions pursuant to the Practice Statement 1966 and will only depart from a previous decision when it appears right to do so.
CPR rules must be followed. The provisions in practice directions…
…must also be followed.
…are guidance which show best practice but need not necessarily be followed.
…explain the CPR rules.
…must also be followed.
Correct. Whilst it is true that the provisions in a practice direction might help you to interpret the CPR, the rules in the PDs must be followed in their own right.
The overriding objective includes dealing with cases at proportionate cost, which means…
…in ways proportionate to the amount of money in dispute.
…in ways proportionate to the amount of money in dispute, the complexity of the case and other factors.
…in ways proportionate to the importance of the case to the parties.
…in ways proportionate to the court’s resources.
…in ways proportionate to the amount of money in dispute, the complexity of the case and other factors.
Well done. This is what CPR 1.1 says. All the factors mentioned in the other answers are potentially relevant when considering proportionality in the overriding objective, but to focus on any one of those points would be to miss the multi-factorial approach which the court must take.
The court’s approach to case management is one best characterised as….
…active on the court’s part, meaning the court will ensure that cases progress appropriately even if the parties do not seek such involvement from the court.
…responsive to requests from the parties for court intervention and guidance, helping them to move the case along appropriately.
…active on the court’s part, meaning the court will act to seek out evidence in order to make a fair determination of the issues in dispute.
…active on the court’s part, meaning the court will ensure that cases progress appropriately even if the parties do not seek such involvement from the court.
Well done. This is what active case management means. See also CPR 1.4. The court is responsive to requests from the parties, but it is not only responsive – it takes action of its own accord, and this is really what ‘active’ case management means. Judges in the courts of England and Wales do not generally seek out evidence, rather than determine cases on the basis of the evidence put before them – so this answer would be wrong, and in any event, this is not really what case management is about.
A claimant is told that the civil standard of proof is on a balance of probabilities. How would you expand this description so that the claimant understands what ‘on a balance of probabilities’ means?
That the court can be ‘sure’ that the claimant’s case is correct.
That the defendant’s case is unlikely to be true.
That the claimant’s case is more probably true than the defendant’s case
That the claimant’s case is more probably true than not true.
Well done. This answer is correct. The civil standard of proof is on a balance of probabilities which means that a fact is established if it is more likely than not to have happened, hence the claimant’s case is more probably true than not true.
In a breach of contract case, which party usually has the burden of proving the duty?
Claimant and defendant
Defendant
Claimant
Claimant
Well done. The burden of proving any issue of fact or law generally falls on the party who asserts it. Therefore, as the claimant asserts the duty in order to establish a claim, it will usually fall on the claimant to prove the duty.
The approach to completing a case analysis should include consideration of….
Duty breach causation and loss
Causation
Breach
Duty
Loss
Duty breach causation and loss
You are instructed on behalf of the claimant in a breach of contract claim which is legally and factually very complicated. The claim is worth approximately £150,000 and, amongst other issues, the court will be invited to interpret a particular term of the contractin order todecide the case.Thisparticular termis a common term within the context of contracts of this nature and the outcome of the case will have important implications fora large number ofother businesses which use contracts with the same term.
What is the best advice to give the claimant in relation to where to start proceedings?
A - The claimant must issue this claim in the High Court.
B - The claimant could issue the claim in the High Court or County Court, but the High Court is more appropriate.
C - The claimant must issue this claim in the County Court.
The claimant could issue the claim in the High Court or County Court, but the County Court is more appropriate.
D - The claimant must issue this claim in the Magistrate’s Court.
B - The claimant could issue the claim in the High Court or County Court, but the High Court is more appropriate.
A claim over £100,000 (non-PI) can be issued in the High Court or the County Court, and should only be issued in the High Court where its value, complexity or importance to the public mean that it ought to be dealt with by a High Court Judge. These facts disclose complexity and importance to the public. The value is confidently over £100,000, although the value alone might not justify issuing in the High Court if the claim was straightforward and of no public importance
In an appeal before the Court of Appeal, the appellant relies in argument on an earlier decision of the Judicial Committee of the Privy Council (JCPC) which indicates that the appeal should be allowed. The respondent relies in argument on an earlier decision of the Court of Appeal which indicates that the appeal should not be allowed. How should the Court of Appeal treat the two decisions to which it has been referred?
A - The court should consider itself bound by the earlier decision of the JCPC.
B -The court should consider itself bound by the earlier decision of the Court of Appeal.
C- The court should consider itself bound by both earlier decisions and must transfer the appeal to a higher court.
D- The court should treat both earlier decisions as having persuasive value only and must decide which of the two to follow.
The court should treat both earlier decisions as without precedent value and should make its decision without regard to either.
This question is from the SRA’s sample questions for SQE1
B - The court should consider itself bound by the earlier decision of the Court of Appeal.
Privy Council decisions are not binding on the courts of England and Wales (so answers A and C are wrong).
The Court of Appeal binds itself (so D and E are wrong).
B is correct.
A claim for damages for professional negligence is settled on terms that the defendant surveyor must pay to the claimant damages of £60,000 together with the claimant’s legal costs, to be assessed on the standard basis. In 2020 the claimant had entered into a written conditional fee agreement with her solicitor which provided for a success fee of 90%. The solicitor has calculated his professional charges at £20,000 before addition of the success fee and VAT. What sum may the solicitor charge the client for his professional fees, net of VAT?
£15,000
£18,000
£30,000
£35,000
£38,000
This question is from the SRA’s sample questions for SQE1.
£38,000
The success fee is 90%. 90% of £20,000 is £18,000. This is on top of the ‘normal’ fee of £20,000. So the total charge is £38,000.
A claimant instructs its solicitor to put forward a breach of contract claim despite the solicitor’s advice that the claim is incoherent – it has no legal basis. Which of the following is the best advice as to whether such a claim should be put forward?
A - The solicitor should not help in putting this claim forward. The claimant can pursue the claim but risks a costs order against it.
B - The solicitor should help the claimant in putting the claim forward. The claimant risks a costs order against it.
C -The claimant cannot pursue the claim.
D- The solicitor should not help in putting this claim forward and should prevent the claimant from pursuing the claim.
E -The solicitor should help the claimant in putting the claim forward. The claimant and solicitor risk costs orders against them.
A - The solicitor should not help in putting this claim forward. The claimant can pursue the claim but risks a costs order against it.
Rule 2.4 requires that you (as a solicitor) only put forward statements, representations or submissions to the court which are properly arguable. B and E are therefore wrong. Whether the claimant pursues the claim is up to the claimant, so C and D are wrong. A is correct.
Which of the following IS NOT a consequence indicated in the practice direction on pre-action conduct as a possible result of failing to comply with the PD on pre-action conduct or applicable pre-action protocol?
The claim could be stayed.
The claim could be struck out.
The party failing to comply could be penalised in interest.
The party failing to comply could be penalised in costs.
The claim could be struck out.
Well done. Whilst this is theoretically possible (CPR 3.4(2)) it is not specifically mentioned in the practice direction on pre-action conduct, perhaps because alternatives such as a stay are more proportionate sanctions.
Which of the following is most likely to justify issuing proceedings without full compliance with the rules on pre-action conduct?
The defendant refusing to contemplate settlement of the claim.
The imminent expiry of a limitation period.
The value of the claim being so small that compliance would be disproportionate.
The imminent expiry of a limitation period.
Correct. A party cannot be expected to comply with the rules on pre-action conduct if that would lead to proceedings being issued too late from a limitation perspective. In these circumstances, a party should issue proceedings but then apply to court for a stay of the proceedings while they comply with the pre-action rules (PD on pre-action conduct, para 17). In terms of the other answers, compliance is expected in a claim of small value – you could argue that taking steps to resolve a claim without court proceedings is particularly important if the value of the claim is small. The defendant refusing to contemplate settlement of the claim is not a good reason not to comply with the pre-action rules.
The Practice Direction – Pre-action Conduct and Protocols requires the claimant (in the usual course of events) to write to the defendant with concise details of the claim and for the defendant to respond __________
within 28 days.
within 14 days.
as soon as possible.
within a reasonable time.
within a reasonable time.
The defendant is required to respond within a reasonable time, which could be 14 days in a straightforward case and no more than 3 months in a very complex one (paragraph 6 of the Practice Direction).
C wishes to bring a personal injury claim against his employer. The claim is valued at £65,000. What is the best advice to give C about whether to issue a claim in the County Court or the High Court?
The claim must be issued in the High Court.
The claim must be issued in the County Court.
The claim should be issued in a specialist division of the County Court.
The claim can be issued in either the County Court or the High Court.
The claim should be issued in the Chancery Division of the High Court.
The claim can be issued in either the County Court or the High Court.
Correct. As this is a personal injury claim exceeding £50,000, both the County Court and High Court have jurisdiction. You will need to consider the factors in 7A PD 2 when making a final decision about whether to issue in the County Court or the High Court.
In order to avoid a limitation defence, what must be done before the limitation date?
The particulars of claim must be filed at court.
The claim form must be issued.
The claim form and particulars of claim together must be filed and served.
The particulars of claim must be served.
The claim form must be served.
The claim form must be issued.
Correct. It is the issuing of the claim form that begins the claim and stops time running for limitation purposes (Limitation Act 1980, CPR 7.2 and 7A PD 5).
Which of the following isNOT specified in the CPR as a justification for issuing proceedings in the High Court (when the CPR does not indicate that either the County Court or the High Court is mandatory)?
The importance of the outcome to the public.
The availability of High Court resources (at the time of issue).
The claimant believes that the claim ought to be dealt with by a High Court judge.
The financial value of the claim.
The complexity of the procedures involved.
The availability of High Court resources (at the time of issue).
Correct. The relevant rules do not indicate that this is a potential justification.
The deadline for taking the ‘relevant step’ to serve the claim form depends on…
…when the claim form was issued.
…the method of service to be adopted.
…when the limitation period expires.
…the date of last correspondence with the defendant.
…when the claim form was issued.
correct
The deadline for taking the ‘relevant step’ to serve the claim form is 12.00 midnight on the calendar day [how many?] months after the date of issue of the claim form (assuming service within the jurisdiction)?
3
2
4
6
4
Well done. See CPR 7.5(1).
If particulars of claim are not contained in or served with the claim form they must be served…
…within 14 days of service of the claim form.
…before service of the claim form.
…within 14 days of service of the claim form or within 4 months of the claim being issued (whichever is later).
…within 14 days of service of the claim form, and also within 4 months of the claim being issued
…within 14 days of service of the claim form, and also within 4 months of the claim being issued
Well done. See CPR 7.4(2).
An antique furniture dealer commences proceedings against an individual in relation to £25,000 owed by the individual for furniture purchased. The individual has instructed solicitors and the solicitors have provided an address for service. Which of the following is a permitted method of service of the claim form?
Service by any of the methods listed in the other answers.
Service on the business address of the solicitor.
Service by post to the usual or last known residence of the individual by post.
Service by depositing the claim form at the usual or last known residence of the individual.
Personal service on the individual.
Service on the business address of the solicitor.
Correct. As the solicitor has been instructed to accept service of proceedings, this is now the only permissible place to serve the claim form (CPR 6.7).
A defendant agrees to accept service by email. The claim form is then duly served by email. The email is sent on Friday 19 October. The claimant receives notification that it has been read on Monday 22 October. When is the claim form deemed served?
Sunday 21 October.
Tuesday 23 October.
Saturday 20 October.
Monday 22 October.
Friday 19 October.
Tuesday 23 October.
Correct. The document served is a claim form (which has different rules to other documents). Deemed date of service will be the second business day after the relevant step to serve was taken, as listed in CPR 7.5(1). For service by email this step is sending the email. Both the first and second days must be business days (ie not weekend or other holiday days) so the first business day is Monday 22 October and the second business day, the date of deemed service, is Tuesday 23 October.
A defence is posted (second class) on Thursday 1 November. When is it deemed served?
Monday 5 November.
Thursday 1 November.
This is not an acceptable mode of service – it will not be deemed served at all.
Saturday 3 November.
Friday 2 November.
This is not an acceptable mode of service – it will not be deemed served at all.
Correct. Second class post is not an acceptable method of service, only first class post.
A witness statement properly addressed is collected by the DX service on Friday 4 March. When is it deemed served?
Saturday 5 March
Friday 4 March
Tuesday 8 March
Sunday 6 March
Monday 7 March
Monday 7 March
Well done. It would be deemed served second day after posting / giving to DX provider, if a business day, and otherwise it would be deemed served the next business day. The DX provider took it on 4 March. The second day after this is 6 March, a Sunday, and not a business day. So it would be deemed served the next business day, which is Monday 7 March.
If a witness statement is served by document exchange, the deemed date of service will be on….
The day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
The same day that the witness statement was left with, delivered to or collected by the DX service provider, provided this happens before 4.30pm and that day is a business day.
The day after the witness statement was left with, delivered to or collected by the DX service provider, regardless of whether that day is a business day or not.
The second day after the witness statement was left with, delivered to or collected by the DX service provider, regardless of whether that day is a business day or not.
The second day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
The second day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
Correct. The document served is a witness statement so the rules relating to documents ‘other than a claim form’ apply. These state that for service by DX the deemed date of service will be the second day after taking the necessary steps as listed in the rule to place the document with the DX service provider, provided that day is a business day.
Which of the following lists are all statements of case?
Claim form and Reply to defence
Particulars of claim and Witness statement
Acknowledgment of service and Defence
Defence and Expert’s report
Claim form and Reply to defence
Correct. Statements of case are key documents by which the parties set out their position in relation to the factual basis of the claim and the claimant’s entitlement to relief. They therefore include the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence.
The claimant has issued a claim form with attached particulars of claim and served the documents on the defendant. The defendant has filed and served a defence. The claimant realised it has made a mistake in the particulars of claim: it has not set out one of the duties. What should the claimant do?
Withdraw its claim
Tell the defendant
Apply to the court for an amendment
Apply to the court for an amendment
Correct. If a statement of case does not comply with necessary content or includes a mistake, it requires formal amendment. This is likely to require the input of the court, giving permission and making further directions to allow for the defendant to amend its defence, etc. There may be costs consequences for the claimant.
If a statement of case contains a serious false statement, what are the implications for the client who has signed the statement of truth?
Proceedings for contempt of court
Nothing. The statement of case is the responsibility of the solicitor.
The case is struck out
Costs sanctions
Proceedings for contempt of court
Correct. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases.
Angela Smith and Brian Jones are business partners in a firm which trades under the name ‘AB Partnership’. If suing this partnership, how would the name of this defendant appear on the claim form?
Angela Smith and Brian Jones trading as AB Partnership
AB Partnership (a Firm)
(1) Angela Smith (2) Brian Jones
AB Partnership Limited
AB Partnership LLP
AB Partnership (a Firm)
Correct. As the partners are being sued as a partnership (ie in the name of the firm and not as individuals) and there is nothing to suggest this is anything other than a traditional partnership (ie it is not an LLP), this is the correct format for the name of this defendant.
In working out the statement of value in the claim form, the following matters should not be taken into account…
Interest and costs only.
Damages, interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
Correct. These items should be disregarded for the purposes of the statement of value in the claim form (CPR 16.3(6)).
It is often appropriate to include the particulars of claim on the claim form for a claim that is a….
Professional negligence claim
Personal injury claim for a brain injury
Against multiple parties
Complex contractual dispute
Simple debt claim
Simple debt claim
Correct. Particulars of claim are usually contained in a separate document, but they can be included in the claim form where they are relatively concise which they are likely to be in a simple debt claim.
In a negligence claim in the High Court, where the claimant claims damages for loss of reputation, which of the following most accurately describes the likely position in relation to interest being claimed in the particulars of claim?
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s69 County Courts Act 1984.
A claim for interest on these damages will not be included in the particulars of claim as the amount of these damages will need to be estimated by the court and are not yet outstanding.
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on contractual principles.
A claim for interest on these damages can be included in the particulars of claim. This must include an exact calculation including the percentage rate, period claimed and total to date and will be based on s35A Senior Courts Act 1981.
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981.
A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981.
Correct. This is a tort claim (negligence) in the High Court so there is no contractual interest provision that might apply and the Senior Courts Act is appropriate for the statutory claim. This is an unspecified claim, as the damages concerned will need to be estimated by the court, so the interest can be pleaded generally.
The claimant agreed to provide the defendant with building materials. The contract setting out all terms of the agreement was signed by both the claimant and the defendant. There is now a dispute and the claimant has issued court proceedings against the defendant. What should the claimant attach to the particulars of claim?
A witness statement
Particulars of the conduct relied on
An expert’s opinion
Written agreement
Particulars of an oral agreement
Written agreement
Correct. There are requirements for the particulars of claim in specific types of claim and situations. Here, the claim is based on a written agreement and so the written agreement should be attached. The claim is not based on an oral agreement or an agreement by conduct and so particulars of words spoken or conduct are not required. It is not the purpose of the particulars of claim to set out evidence (from an expert or a witness); this is provided at a later stage.
What is the purpose of the prayer in the particulars of claim?
A summary of the interest sought by the claimant
A summary of the duty, breach, causation and loss
A summary of the parties
A summary of the damages sought by the claimant
A summary of the relief sought by the claimant
A summary of the relief sought by the claimant
Correct. The particulars of claim closes with a summary of the remedies sought by the claimant and so gives the court and the defendant a quick means of ascertaining what the claimant actually wants. It includes damages and, if claimed, interest.
A claimant company wishes to issue a claim in the County Court against three of its customers to recover the amount of several unpaid invoices and accrued interest totalling £75,000. The three customers were involved in a joint venture together and are jointly and severally liable for the debt.
Where should the claimant send this claim form to be issued?
A. The claimant should submit this claim form using the Money Claim Online service.
B. The claimant should send this claim form to be issued in the County Court Money Claims Centre.
C. The claimant should send this claim form to its local County Court hearing centre.
D. The claimant should send this claim form to the County Court hearing centre local to the lead defendant.
E. The claimant should send this claim form to the County Court hearing centre (or centres) local to the defendants.
B – The claimant should send this claim form to be issued in the County Court Money Claims Centre.
as there are 3 defendants!
could be A if there were 2 defendants
You have just been instructed by a new client. Today’s date is 15th December and you advise your client that the limitation for its proposed claim expires on 27th December in 12 days’ time. The Practice Direction on Pre-action Conduct applies to the claim. Your client would like to proceed with the claim, but will not be available to assist with case preparation until early in January. Your client wants to know whether it is possible to postpone issuing proceedings until early in January? What advice should you give your client?
Your client should write a letter to the defendant setting out the nature of the proposed claim and await a response as a demonstration of good conduct in the proceedings in accordance with the Practice Direction on Pre-action Conduct.
Your client should comply with the Practice Direction on Pre-action Conduct prior to issuing proceedings as failure to do so will result in adverse costs consequences.
Your client should write a letter to the defendant setting out the nature of the proposed claim and suggesting that they agree to postpone proceedings until early in January.
Your client should issue the claim form straight way but wait to serve it until the beginning of January when it is able to attach the particulars of claim to provide the defendant with more information on its underlying claim.
Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
CORRECT: Given the tight timelines and the application of the Practice Direction on Pre-action Conduct the best course of action for the client is to issue the claim form straight away (so preventing the claim from being time-barred by limitation) but contact the defendant so that they can apply to the court asking for a stay to proceedings allowing compliance with the Practice Direction (paragraph 17). The other options set out do not fully address the duty owed by the claimant to comply with the Practice Direction or deal effectively with the risk of the claim being time-barred due to limitation.
Your client is a company who is intending to commence proceedings against a partnership claiming professional negligence. The claim is for £500,000. As required, the company and the partnership have been following the Professional Negligence Pre-action Protocol. Recently, however, the solicitors for the potential defendant partnership were 2 days late in responding to the letter of claim without seeking an extension or offering any explanation. Which of the following statements best describes what your client should do, assuming it wishes to commence proceedings as soon as possible?
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
The company should not raise the partnership’s non-compliance with the protocol at the moment but instead ask the court to make an adverse costs order at the end of the case (CPR 44.2) to reflect the non-compliance.
The company should raise the partnership’s non-compliance with the court and ask the court to impose costs sanctions for non-compliance with the protocol.
The company should expect more favourable case management orders since it has complied with the protocol and the partnership has not.
The company should commence proceedings as the Pre-action Protocol has not been followed by the partnership.
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
CORRECT. Parties are expected to comply with the spirit of the protocols and the court will not be concerned with trivial breaches (paragraph 13 PD on Pre-action Conduct).
Your client wishes to commence proceedings for breach of contract against a supplier for defective goods. The amount of the claim is £108,000 (inclusive of £18,000 VAT). The claim is not complex. In which court can your client issue proceedings?
Your client must issue proceedings in the High Court.
Because the case will be allocated to the multi-track, your client ought to commence proceedings in the High Court.
Your client must issue proceedings in the County Court given that the principal amount is £90,000.
Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
If your client commences proceedings in the County Court it is likely that the court will transfer it to the High Court.
Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
Correct. Given that the amount is over £100,000 (even if this is only as a result of VAT), your client has a choice as to where to issue proceedings (7A PD 2.1 and CPR 16.3(6)). However, facts here may point towards the Count Court being the better choice given the complex is not complex and the value is only just over the £100,000 threshold.
A client is claiming damages for negligence by a solicitor. The solicitor works in a city law firm’s commercial property department and is listed in Chambers & Partners as a specialist in commercial property law. It is alleged that the solicitor negligently advised the client about the meaning of a restrictive covenant which has directly let to the client suffering loss. Which of the following statements best describes the standard of care that the solicitor should have exercised in this case?
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property and recommended in Chambers & Partners.
The solicitor must act to the standard of a reasonably competent practitioner.
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
The solicitor must act to the standard acceptable to a responsible body of practitioners.
The solicitor must act to the standard the majority of solicitors would act.
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
The solicitor owes the client a duty to exercise reasonable care and skill (in both contract and tort). The duty owed is the same in contract and tort. The duty in contract derives from an implied term to act with reasonable care and skill pursuant to s.13 Supply of Goods and Services Act 1982. The same duty is owned in tort as Hedley Byrne v Heller (and later Caparo v Dickman) established that a person who makes a negligent statement could owe a duty of care to a person who suffered pure economic loss through reliance on that statement if there is a special relationship between the parties. The solicitor / client relationship is an established category of special relationship where it is reasonable to impose a duty. The standard is that of a reasonably competent solicitor. The court will consider that a solicitor is not normally negligent if acting in accordance with general practice (Bolam), but that is not conclusive and in deciding what is reasonable, the court may look at the level of skill it believes members of the professional ought to have had (Bolitho). There is a slightly higher standard for someone of greater experience and skill, for example, specialising in commercial property, in contrast to a solicitor who is a general practitioner, but no higher standard. The individual Chamber’s recommendation does not affect the standard. This question is a reminder that you need to have knowledge of contract and tort. Please remember that you have access to contract and tort materials on Adapt.
A solicitor has been instructed on behalf of a supermarket chain to act in relation to a breach of contract claim against one of the supermarket’s suppliers. The supermarket chain is a private company. Having completed the requirements set out in the Practice Direction on Pre-action Conduct and having failed to settle the claim, the solicitor drafts the particulars of claim on behalf of their client. The managing director of the supermarket chain will sign the statement of truth on the particulars of claim. Which of the following gives the correct format for the statement of truth?
The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I am duly authorised by the Claimant to sign these particulars of claim. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant believes that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I believe that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
?? Week 1 Assessment Level MCQs
incorrect
I am duly authorised by the Claimant to sign these particulars of claim. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
This is incorrect. The statement of truth must include a sentence to confirm that the party believes that the facts contained in a statement of case are true. Look again at your materials to see the precise wording required. Revisit the element ‘General rules in relation to statements of case’.
If the defendant acknowledges service indicating an intention to defend the claim, the effect of this is as follows:
This will extend the period for filing the defence to 28 days from the deemed date of service of the particulars of claim.
This will extend the period for filing the defence to 28 days from the deemed date of service of the claim form.
This will stay the claim for 14 days while the defence is prepared.
This will extend the period for filing the defence by an extra 14 days from the date the acknowledgment of service was filed.
This will extend the period for filing the defence to 56 days from the deemed date of service of the particulars of claim.
This will extend the period for filing the defence to 28 days from the deemed date of service of the particulars of claim.
Correct (CPR 15.4 (1)(b)).
If, after having filed an acknowledgment of service, the defendant is unable to file and serve their defence by the deadline prescribed by their rules their next step should be as follows:
Write to the court asking them to persuade the claimant to agree to an extension of time.
Request an extension of up to 56 further days from the claimant, notifying the court in writing of any such extension that is agreed.
Allow the deadline to pass but file and serve the defence as soon as possible after this.
Make an immediate application to the court for an order extending the time for service of the defence.
Request an extension of up to 28 further days from the claimant, notifying the court in writing of any such extension that is agreed.
Request an extension of up to 28 further days from the claimant, notifying the court in writing of any such extension that is agreed.
Correct. CPR 15.5 allows the parties to agree extensions of up to 28 days between themselves.
The claim form is served with particulars of claim attached. When does the acknowledgment of service need to be filed?
Within 14 days after service of the particulars of claim.
Within 28 days after service of the claim form
Within 14 days after service of the claim form
Within 28 days after service of the particulars of claim.
Within 14 days after service of the claim form
Correct (CPR 10.3).
The claim form is served indicating that particulars of claim will follow. The particulars of claim do indeed follow 2 days later. When does the acknowledgment of service need to be filed?
Within 28 days after service of the particulars of claim.
Within 14 days after service of the particulars of claim.
Within 14 days after service of the claim form
Within 28 days after service of the claim form
Within 14 days after service of the particulars of claim.
Correct (CPR 10.3).
The claim form is served with particulars of claim attached. When does the defence need to be filed (assuming no acknowledgement of service is filed)?
Within 28 days after service of the particulars of claim.
Within 14 days after service of the claim form
Within 28 days after service of the claim form
Within 14 days after service of the particulars of claim.
Within 14 days after service of the particulars of claim.
Correct (CPR 15.4).
If a claim for a specified sum is admitted in full, the judgment sum payable by the defendant will comprise…
The debt, interest, court fees and fixed costs.
The debt, interest and court fees, with an amount for costs to be assessed later.
The debt, interest and court fees.
The debt and interest.
The debt, interest and fixed costs.
The debt, interest, court fees and fixed costs.
Correct. Judgment in the exact sum due can be entered without delay as the amount of interest on the debt can be calculated to the date of judgment, the court fees are known and fixed court costs will apply (these are set out in CPR 45).
Following an admission by a defendant to pay a specified sum and a request for time to pay, the claimant’s position is as follows:
The claimant can reject the request for time to pay and insist on full payment immediately instead.
The claimant can reject the request for time to pay and impose their own rate of payment instead.
The claimant can reject the request for time to pay in which case the court will decide the rate of payment of the outstanding amount.
The claimant can accept the request for time to pay and demand further financial information from the defendant.
The claimant must accept the payment terms offered by the defendant in their request for time to pay.
The claimant can reject the request for time to pay in which case the court will decide the rate of payment of the outstanding amount.
Correct. The claimant has the option to reject the defendant’s request for time to pay and it is the court that will decide the rate of payment in these circumstances (CPR 14.10).
A defendant admits the whole of an unspecified claim. What will happen next?
The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with quantum (and costs) to be decided at a later hearing.
The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with fixed costs under CPR 45. Quantum will be decided at a later hearing.
There will be a hearing to confirm judgment on liability and quantum.
Judgment on liability will automatically be entered by the court with quantum (and costs) to be decided at a later hearing.
Judgment on liability and quantum will automatically be entered by the court and the case will be over.
The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with quantum (and costs) to be decided at a later hearing.
Correct. This is the approach that the court will take (CPR 14.6 and 14.7).
When calculating time periods expressed as a number of days in the CPR, the ‘clear days’ rule means:
The day on which the period begins never counts and if the day on which the period ends is defined by reference to an event, such as a hearing, that day does not count either.
The day on which the period begins never counts and neither does the day on which the period ends.
The day on which the period begins counts, unless it is defined by reference to an event, such as a hearing, and the day on which the period ends never counts.
Weekends and bank holidays are not included if the time period is three days or less.
Weekends and bank holidays are never included.
The day on which the period begins never counts and if the day on which the period ends is defined by reference to an event, such as a hearing, that day does not count either.
Correct. This is the rule that applies to all time limits in the CPR expressed as a number of days (CPR 2.8).
Where the specified period is [ ], any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.
Less than 5 days
Less than 7 days
Not more than 5 days
7 days or more
Not more than 5 days
Correct. The expression used in the CPR is ‘5 days or less’ (CPR 2.8), which means the same thing.
The court orders that “The time for service on another party of any question addressed to an expert instructed by that party is not later than 7 days after service of that expert’s report”. The defendant’s expert’s report is deemed served on Monday 23 August. Monday 30 August is a bank holiday. Are the questions on time if served on Tuesday 31 August?
Yes, because 7 clear days after Monday 23 August is Monday 30 August, but as the court office is closed on Monday 30 August, service is on time if completed by 31 August.
Yes, because 7 clear days after Monday 23 August is Tuesday 31 August.
No, because 7 clear days after Monday 23 August is Monday 30 August.
No, because 7 clear days after Monday 23 August is Monday 30 August.
Correct. 7 clear days after Monday 23 August is Monday 30 August (the end of the period is not defined by reference to an event, so you do not leave a clear day at the end). There is a rule that where a deadline relates to doing any act at the court office (such as filing a document at court) and the deadline for doing that act ends on a day on which the court office is closed, then the act is treated as on time if done on the next day on which the court office is open. However, that rule is not relevant here, because serving questions for an expert is not an act at the court office. See this element and CPR 2.8.
The court is to fix a date for a hearing. The hearing must be at least 28 days after the date of notice. If the court gives notice of the date of the hearing on 10 March, when is the earliest date for the hearing?
8 April
7 April
16 April
9 April
8 April
Correct. Here, the end of the period is defined by reference to an event (the hearing), so you leave a clear day at the end as well as at the beginning. You also count weekends because the period is more than 5 days. See this element and/or CPR 2.8.
Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Tuesday 10 February. What is the last date for service?
Saturday 7 February
Friday 6 February
Tuesday 3 February
Wednesday 4 February.
Wednesday 4 February.
Correct. You do not count the days at the beginning or end. You do not count the weekend when the period of time is 5 days or less, and here it is 3.
The following is a matter which must be included in the defence by the defendant …
A copy of any written agreement that the claim is based upon.
A summary of the relief sought.
The date on which the limitation period expired if limitation is being raised as an issue.
Particulars of the alleged breaches of duty in the claim.
Details of how the claim for interest has been calculated.
The date on which the limitation period expired if limitation is being raised as an issue.
Correct. Limitation is a defence and if it is being raised by the defendant, the date the limitation period is deemed to have expired must be stated in the defence (16 PD 13.1).
The defendant should require proof of an allegation in the particulars of claim in the following circumstances:
When the defendant knows that the allegation is incorrect but has their own version of events to put forward instead.
When the defendant knows that the allegation is incorrect.
When the defendant does not care if the allegation is correct or incorrect but wants the claimant to prove its case.
When the defendant has no knowledge of the facts of the matter stated.
When the defendant knows that the allegation is correct.
When the defendant has no knowledge of the facts of the matter stated.
Correct. If the defendant has no direct knowledge, they cannot admit or deny and should require the claimant to prove the point.
If the defendant’s defence omits to deal with an allegation in the particulars of claim, the position is generally that…
it is deemed that the defendant requires proof of the allegation.
the allegation is deemed irrelevant.
the allegation is deemed admitted.
the allegation will be struck out.
the allegation is deemed denied.
the allegation is deemed admitted.
Correct. This is the case unless the defendant has set out its own case in respect of the allegation, in which case the claimant will still be required to prove the allegation (CPR 16.5(3) and (5)).
A reply…
is a compulsory statement of case for the claimant following the service of a defence and counterclaim.
will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
is a compulsory statement of case for the claimant following the service of a defence.
should be filed within 14 days after service of the defence.
will usually be followed by further statements of case such as an amended defence.
will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
Correct. The reply is an optional statement of case and will only be served if needed. Please see the Defence and reply element (or CPR 15.8).
What is default judgment?
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service.
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service and/or the defence.
Judgment in favour of the claimant where the statements of case do not amount to a legally recognisable defence.
Judgment in favour of the defendant.
Judgment in favour of the claimant where the defence is weak.
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service and/or the defence.
Correct
Judgment in favour of the claimant where the defendant has not responded with an acknowledgment of service and/or the defence is correct and is the meaning of default judgment (CPR 12.1). The other options were incorrect for the following reasons: Judgment in favour of the claimant where the defendant has not responded to the acknowledgment of service is incorrect because it is also important to check if the defendant has filed a defence. A claimant can obtain judgment in default of an acknowledgment of service if the defendant has not filed an acknowledgment of service or a defence and the time for doing so has expired. Judgment in favour of the claimant where the statements of case do not amount to a legally recognisable defence is incorrect because an application for strike out would be more appropriate. Judgment in favour of the claimant where the defence is weak is incorrect because an application for summary judgment would be more appropriate. Judgment in favour of the defendant is incorrect as judgment in default is judgment on the claim in default of the defendant doing something and is available to the claimant only.
When does the court have a discretion to set a default judgment aside?
If the defendant had applied for summary judgment or strike out before judgment was entered.
If the acknowledgment of service or the defence had been filed on time.
If the time limit for acknowledging service or serving a defence had not expired.
If the defendant has a real prospect of successfully defending the claim.
If the defendant had admitted the claim.
If the defendant has a real prospect of successfully defending the claim.
Correct
‘If the defendant has a real prospect of successfully defending the claim’ is the correct answer. This is one of two reasons the court may set aside a default judgment (CPR 13.3). Test yourself: can you remember what the other reason is? The other options were incorrect for the following reasons because in all the situations stated, the judgment would not have been entered correctly and the court must set aside default judgment in those situations (CPR 13.2) The court may set aside judgment if the acknowledgment of service or the defence had been filed on time is an incorrect answer as this judgment would not have been correctly entered and the court must set aside default judgment in this situation (CPR 13.2). The court may set aside judgment if the defendant had admitted the claim is an incorrect answer as the court must set aside default judgment in this situation (CPR 13.2). The court may set aside judgment if the defendant had applied for summary judgment or strike out before judgment was entered is an incorrect answer as the court must set aside default judgment in this situation (CPR 13.2). The court may set aside judgment if the time limit for acknowledging service or serving a defence has not expired is an incorrect answer as the court must set aside default judgment in this situation (CPR 13.2).
Your client is the defendant in the proceedings. The client failed to file its defence by the deadline as it did not have time to draft it. The claimant has entered default judgment against the client. The client believes it has a good defence. What should the client do next?
Apply for summary judgment.
Apply for strike out.
Submit the defence anyway.
Apply for default judgment to be set aside because judgment has been wrongly entered.
Apply for default judgment to be set aside asking the court to exercise its discretion.
Apply for default judgment to be set aside asking the court to exercise its discretion.
Apply for default judgment to be set aside asking the court to exercise its discretion is the correct answer. CPR 13.3 gives the court the discretion to set aside judgment if the defendant has a real prospect of successfully defending the claim. The defendant must, however, apply to set aside judgment without delay (CPR 13.3(2)). The other options were incorrect for the following reasons: Apply for summary judgment is incorrect. A default judgment has been made which effectively ends the proceedings and so the defendant must apply to set aside the default judgment before making any further applications. Apply for strike out is incorrect. A default judgment has been made which effectively ends the proceedings and so the defendant must apply to set aside the default judgment before making any further applications. Apply for default judgment to be set aside because judgment has been wrongly entered is incorrect because judgment has been correctly entered ie in default of the defendant filing the defence. Submit the defence anyway is incorrect because the defendant must address the default judgment by setting it aside before it can take a further step in the proceedings.
The date for filing the acknowledgement (or defence), Friday 23 December, passes. Price Prior, the Claimant’s solicitor, is closed for Christmas, reopening on Tuesday 3 January. On 3 January, the Claimant telephones the court to check that there is nothing on file. The Claimant successfully enters default judgement against the Defendant on 5 January. In fact, the Defendant has filed the acknowledgement at court on Thursday 22 December, but it had not been processed and had got lost in a backlog of work at court.
What is the Defendant most likely to do next? Choose one of the following options:
A - Nothing; it is too late as default judgment has been entered
B - Apply to set aside default judgment: the court has discretion to set aside because the Defendant has a real prospect of successfully defending a claim
C - Apply to set aside default judgment: the court has discretion to set aside because there is some other good reason why the Defendant should be allowed to defend
D - Apply to set aside default judgment: the court must set aside because judgment was wrongly entered.
D - Apply to set aside default judgment: the court must set aside because judgment was wrongly entered.
deadline had not passed and service had been acknowledged, the court must set it aside!
On Thursday 1 October, your client issued a claim form in the High Court against the defendant to the claim claiming £125,000 being the price of goods sold and delivered. Unfortunately, the parties did not follow the Practice Direction on Pre-action Conduct. The claim form and particulars of claim were served together by first class post on Wednesday 14 October. The defendant has not yet filed any response to the claim. It is now Monday 2 November. Your client wishes to enter judgment in default for the sum of £125,000 plus interest. Which one of the following answers is correct?
Your client may NOT enter judgment in default because your client did not write a letter of claim in accordance with the Practice Direction on Pre-action Conduct.
Your client may enter judgment in default because at least 14 days have elapsed since the claim form was issued.
Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
Your client may NOT enter judgment in default because the deadline for filing an acknowledgment of service has not elapsed.
Your client may NOT enter judgment in default because the defendant does not have to file an acknowledgment of service and the deadline for filing a defence has not elapsed.
Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
Correct
Correct. Default judgment may be obtained in default of the defendant filing an acknowledgment of service and/or a defence (CPRs 12.1 and 12.3). The defendant should have filed an acknowledgement of service within 14 days of service of the claim form where the claim form and particulars of claim were served together or within 14 days after service of the particulars of claim where the claim form stated that the particulars of claim was to follow (CPR 10.3(1)(a)); or a defence within 14 days of service of the particulars of claim (CPR 15.4). The deemed date of service of the claim form and the particulars of claim was Friday 16 October and the defendant should have filed either an acknowledgment of service or a defence within 14 days after the deemed date of service which was Friday 30 October. This date has now passed and it is open for the claimant to apply for default judgment.
incorrect
Your client may NOT enter judgment in default because your client did not write a letter of claim in accordance with the Practice Direction on Pre-action Conduct.
Incorrect as failure to comply with the Practice Direction on Pre-action Conduct has no effect on making an application for default judgment. Please review the elements on responding to proceedings (or see CPR 10.3, 15.4 and 12.3).
On receipt of the claimant’s claim form and particulars of claim, you advised your client, the defendant, that it has a good defence. You have just returned from holiday 3 days late due to your flight being cancelled. In your absence, judgment in default was entered against your client as you failed to file an acknowledgement of service or defence within 14 days of deemed service of the particulars of claim.
What is the best answer about whether there is anything you can do to enable your client to defend the claim?
Issue an application to set aside judgment in default as the defendant is not at fault for failing to file acknowledgement of service in time.
Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
Issue an application to strike out the claimant’s claim.
Issue an application to set aside judgment as the judgment in default has been wrongly entered.
There is nothing that can usefully be done.
Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
Correct. The application to set aside judgment in default should be made promptly and should show some merit to the defence. The other answers are incorrect because ‘fault’ is not necessarily relevant, the judgment has been correctly entered, and there is no basis for applying for strike-out.
A firm is acting on behalf of a defendant in a litigation matter. The claimant served the defendant in England and Wales with the claim form and particulars of claim by personal service at 2.00 pm on Monday 5th July. The firm would like to serve the defence on the latest date possible without seeking permission from the claimant.
Based on the above information, the defendant, acting prudently, should file and serve its defence by when?
2 August
30 August
19 July
21 July
4 August
2 August
Correct
Correct. The general rule is that the period for filing a defence is, a) 14 days after service of the particulars of claim; or b) If the defendant files an acknowledgement of service, 28 days after service of the particulars of claim (CPR 15.4). Time starts from the date of deemed service of the particulars of claim and the latest date to file a defence is 28 days after this date as long as an acknowledgement of service is filed.
If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, then there is some ambiguity in the rules as to whether the rules for service of the CF (CPR 6.14) apply to the particulars of claim too, or whether the rules for documents other than the CF (CPR 6.26) apply. This could lead to the claim form and particulars of claim being deemed served on different dates, despite being in the same envelope.
A party responding to proceedings would be prudent to act on the assumption that the particulars are served on the earliest possible date. Therefore, here, deemed service of the particulars of claim (served within England and Wales personally before 4pm on a business day) is the same day, Monday 5 July (CPR 6.26). A period of time expressed as a number of days is computed as clear days which means the day on which the period begins, 5 July, is not included. The day on which the period ends is not included if it ends in an event (otherwise, it is included).
This means counting time begins on a clear day, 6 July, and ends on the twenty-eighth day of counting, here, 2 August, as the period does not end in an event ie a hearing.
The claimant is an investor bringing a claim against a former advisor, alleging negligent advice. Your client is the defendant advisor. The claimant alleges in paragraph 6 of its particulars of claim that ‘in breach of the implied term of the contract to exercise reasonable skill and care, the defendant failed to provide the claimant with adequate information from which to make an informed decision as to whether or not to proceed with the investment’. The advisor tells you that this is not true and that the claimant was provided with adequate information in a letter dated 6 April from which to make an informed decision. Your case analysis confirms that the information in the letter was adequate to discharge the advisor’s duty of care.
How should the defendant respond to paragraph 6 of the particulars of claim in the defence?
‘The defendant requires proof of paragraph 6 of the particulars of claim.’
‘The defendant requires proof of paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
‘The defendant denies paragraph 6 of the particulars of claim.’
‘The defendant admits paragraph 6 of the particulars of claim.’
‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
Well done. As your client has another version of events, your client can deny the paragraph and set out that other version of events. In relation to the other answers, it would clearly be wrong to admit the paragraph, and putting the claimant to proof is only appropriate if the defendant can neither admit nor deny.
A building company is suing a sub-contractor for breach of contract in the High Court. The claim is valued at £500,000 and it is a few days before the defence is due to be served. The sub-contractor needs to collate some financial information from its quantity surveyor about the works in order to finalise its defence. The quantity surveyor has just confirmed that it is unable to supply this information for at least the next 2 weeks. The defendant requests an extension of 3 weeks to serve its defence but the building company refuses to agree this extension of time. The sub-contractor therefore applies to the court for an extension of 3 weeks.
Which of the following arguments will be the most persuasive when the court is considering granting this extension?
Whether the sub-contractor’s prospects of successfully defending the claim are good.
Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor.
Whether the case is in the High Court
Whether the building company’s prospects of success in the claim are good.
Whether the date of the final hearing will be affected.
Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor.
Correct. When the court is exercising its case management powers, it will want to further the overriding objective to ensure that any extension enables the court to deal with the case justly and at proportionate cost. This will be alongside the reasons why an extension is required by the sub-contractor / not agreed by the building company.
A counterclaim must…
Arise out of the same facts as the main claim.
Always be heard with the main claim.
Be related to the claimant’s cause of action in the main claim.
Be made at the same time as the defendant files their defence.
Be based on a cause of action in which the defendant can establish duty, breach, causation and loss.
Be based on a cause of action in which the defendant can establish duty, breach, causation and loss.
Correct
Correct. A counterclaim is a claim like any other and these four essential elements of the cause of action are essential.
A claimant claims £125,000 from the defendant in the main claim. The defendant makes a counterclaim of £50,000 and, as the facts underlying the counterclaim give rise to a set off, the defendant also raises this in defence to the main claim. Assuming both claimant and defendant win their respective claims, what will the final outcome be here?
The claimant will pay the defendant £75,000.
The defendant will pay the claimant £175,000.
The defendant will pay the claimant £125,000.
The defendant will pay the claimant £75,000.
The claimant will pay the defendant £50,000.
The defendant will pay the claimant £75,000.
Correct. The defendant will owe the claimant the £125,000 the claimant was awarded in their claim, less the £50,000 the defendant was awarded from the claimant in the counterclaim and which will be deducted by way of set off. The balance is £75,000.
A reply…
Is a compulsory statement of case for the claimant following the service of a defence.
Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
Will usually be followed by further statements of case such as an amended defence.
Should be filed within 14 days after service of the defence.
Is a compulsory statement of case for the claimant following the service of a defence and counterclaim.
Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
Correct. The reply is an optional statement of case and will only be served if needed. Please see CPR 15.8.
C is suing D1 and D2. D1 has the following claims: i) a counterclaim against C based on an unpaid invoice; and ii) a claim against D2 for a contribution or indemnity in respect of any damages D1 is ordered to pay to C.
Which specific provision of CPR 20 will govern D1’s claim against D2?
CPR 20.2(1)(b)
CPR 20.6
CPR 20.4
CPR 20.5
CPR 20.7
CPR 20.6
Correct. D1’s claim against D2 is a claim against an existing party for a contribution or indemnity.
C is suing D1 and D2. D1 brings an additional claim against E under CPR 20.7. In the proceedings E will be referred to as…
The Third Defendant.
The Part 20 Defendant.
The Third Party.
The Additional Claim Defendant.
The Fourth Party.
The Third Party.
Correct. Additional parties will be referred to in accordance with the order in which they are joined to the proceedings. See 20 PD 7.4. E is the first additional party to join the proceedings so is the Third Party.
C is suing D. D brings a CPR 20.7 additional claim against E. If E fails to respond to the additional claim within the applicable time limits…
E will be deemed to intend to defend the additional claim but will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will be able to apply for default judgment against E in the additional claim and E will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will not be able to apply for default judgment but E will be deemed to admit the additional claim and will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will be able to apply for summary judgment against E in the additional claim and E will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D will not be able to apply for default judgment but E will be deemed to admit the additional claim. D will still need to prove any issues from the main claim between C and D in so far as they are relevant to the issues in the additional claim.
TO DO
LAST Q OF Multiple Causes of Action, Counterclaims and Additional Claims
C issues and serves a claim on D Limited following extensive dealings with the managing director of D Limited. D Limited defends the claim and the claim is now at the exchange of evidence stage. Although the claim was in time when issued, the limitation period has now expired. It transpires that the claim form mistakenly names the defendant as E Limited rather than D Limited.
Will C be able to amend the claim form to substitute E Limited with D Limited?
C will be permitted to amend the claim form as the limitation period was current when the original claim was issued.
C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant.
C will be permitted to amend the claim form but only if D Limited consents to this.
C will not be permitted to amend the claim form as E Limited is a completely different entity and has a different identity from D Limited.
C will not be permitted to amend the claim form as the limitation period for this has now expired and this would be a new claim against D Limited which is out of time.
C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant.
Correct. This situation falls within CPR 17.4(3). D Limited was always the intended defendant and the mistake causes no reasonable doubt as to the identity of the defendant.
Permission to amend the particulars of claim to add a party after the claim form has been served but before the limitation period has expired should be given if…
The amendment is ‘desirable’.
The amendment is made not too close to the trial date.
The amendment is agreed by all other parties.
The amendment is ‘necessary’.
The claimant has a reasonable prospect of success in the claim against the new party.
The amendment is ‘desirable’.
Correct. This is the main test as set out in CPR 19.2.
Amended statements of case must…
Use a numerical code for amendments.
Use coloured amendments.
Be verified by a statement of truth unless the court orders otherwise.
Show the original text as well as the new text.
Use margin references to indicate where amendments have been made.
Be verified by a statement of truth unless the court orders otherwise.
Correct. See CPR 22.1(2).
When is the court most likely to make an order for further information?
After a voluntary request to the other party has been refused or not responded to.
After the parties have indicated that no further information is required.
After the party seeking the information has made the request to the other party on the telephone.
After the parties have reached an agreement about the request.
After the parties have complied with the overriding objective.
After a voluntary request to the other party has been refused or not responded to.
Correct
It is correct to say that the court is most likely to make an order for further information after a voluntary request to the other party has been refused or not responded to. The court expects the parties make requests on a voluntary basis first and the parties should only make an application to the court for an order under CPR 18.1 if the request cannot be resolved – see 18 PD 1.
The other answers are incorrect:
After the parties have complied with the overriding objective. Parties are expected to comply with the overriding objective at all times and it will always be a factor that the court takes into account when making an order, but it is not the ‘reason’ for the court making an order here.
After the parties have reached agreement about the request. If the parties have reached agreement, they do not need a CPR 18.1 court order – 18 PD 1.
After the party seeking the information has made the request to the other party on the telephone. The party seeking information should serve a written request on the other party stating a date for a response (and allowing the other party a reasonable amount of time to respond) – 18 PD 1.
After the parties have indicated that no further information is required. If no further information is required by either party, they do not need a CPR 18.1 court order – 18 PD 1.
When an application for an order for further information is made to the court, it should be made as…
The court’s allocation to track – CPR 26
An interim application – CPR 23
Relief from sanctions – CPR 3.9
An amendment to a statement of case – CPR 17
The use of the court’s general case management powers – CPR 3.1
An interim application – CPR 23
Correct
The correct answer is that an application for an order for further information is made as an interim application pursuant to CPR 23. The application should be made as an interim application under CPR 23 (18 PD 5).
The other options were incorrect:
The use of the court’s general case management powers – CPR 3.1
Relief from sanctions – CPR 3.9
The court’s allocation to track – CPR 26
An amendment to a statement of case – CPR 17
These relate to other types of application.
A party can obtain further information from the other party to clarify or give additional information in relation to any matter…
Which is in dispute in the proceedings
Which is contained in or referred to in a witness statement.
Which is contained in or referred to in a particulars of claim.
Which is contained in or referred to in a defence.
Which is contained in or referred to in a statement of case.
Which is in dispute in the proceedings
Correct
The correct answer is that a party can obtain further information from the other party to clarify or give additional information in relation to any matter which is in dispute in the proceedings as explained at the beginning of this element.
The incorrect answers are:
Which is contained in or referred to in a statement of case.
Which is contained in or referred to in a defence.
Which is contained in or referred to in a particulars of claim.
Which is contained in or referred to in a witness statement.
The definition is broader than these options. The request is often in relation to a matter contained or referred to in a statement of case, but the court’s power is not limited to matters contained or referred to in a statement of case (or to any other particular document).
A construction company intends to sue one of its sub-contractors, an electrician, for breach of contract. The claim form has been issued, but it has not yet been served. Before service of the claim form, the construction company decides to add a new defendant, a plumber, to the claim as an additional party. Which of the following best describes the position of the construction company?
The construction company will require the written consent of both the electrician and the plumber to add the additional party.
The construction company should seek the written consent of the electrician to add the additional party.
The construction company should apply to the court for permission to add the additional party.
The construction company will not require the court’s permission to add the additional party.
The construction company should seek the written consent of the plumber to be added as an additional party.
The construction company will not require the court’s permission to add the additional party.
Correct
Well done. The claim form has been issued but not served. In this case, the court’s permission is not necessary to add the plumber as an additional party (nor is permission needed from either the electrician or the plumber) (CPR 19.4(1)).
incorrect
The construction company should apply to the court for permission to add the additional party.
This is incorrect. It is not necessary to apply to the court for permission to add the plumber to the claim in this case. Consider carefully what steps have been taken so far and what is necessary in this case.
In a case involving four defendants, one of the defendants amends its defence to allege that the claimant was contributorily negligent. The court grants permission for this amendment. Which party will usually pay the costs of and arising from the amendment?
The defendant applying for the amendment
The unsuccessful party at the end of the trial in accordance with the general rule on costs (CPR 44.2).
The claimant
All the parties to the action
All the defendants
The defendant applying for the amendment
Correct
Well done. This reflects the rule that a party applying for an amendment will usually be responsible for the costs of and arising from the amendment (PD17 and PD19). So, in this case it is likely that the defendant making the amendment would be responsible for the costs. Note that the rule is not obligatory, and the court can depart from it. Given this rule, it is unlikely that the costs would fall to be determined at the end of the trial as most other costs would (CPR 44.2).
incorrect
The unsuccessful party at the end of the trial in accordance with the general rule on costs (CPR 44.2).
Your answer is incorrect. Please consider amendments and costs again and think about whether the general rule on costs would apply in this instance and then have another go.
Your client has received a request for further information by letter in respect of a defence it filed to a claim against it for misrepresentation. The defence as currently drafted fails to fully detail the oral representations made by your client before the contract was entered into. Your client agrees to provide the information requested. Which of the following most accurately describes the form your client’s response to the request for further information should take?
The client’s response should take the form of an amended defence.
The client’s response should be in writing, signed, dated and be verified by a statement of truth.
The client’s response should be in the form of a letter in reply which will be signed and dated as normal.
The client should provide the information in whichever form is most proportionate including verbally, for example, in a telephone call.
The client’s response should be in writing, signed and dated but need not be verified by a statement of truth.
The client’s response should be in writing, signed, dated and be verified by a statement of truth.
Correct. Whatever form the request has taken, the response must be in writing, dated and signed by either the party or their legal representative and also verified by a statement of truth. It could be by letter or by way of a formal reply. (PD 18)
During her employment as a delivery driver, your client, Sue, was involved in a road traffic accident with another car. Your client has sued the driver of the other car, Amir, for personal injuries. Amir, in turn, has issued a counterclaim against your client claiming damages for personal injuries that Amir also sustained in the road traffic accident. Amir wishes to use the same arguments in the counterclaim against your client’s employer. The employer is vicariously liable for your client’s actions. Can Amir add your client’s employer as a party to the proceedings?
Yes, as an ‘other’ additional claim (CPR 20.7)
No, as there is no Part 20 claim that provides for this situation.
Yes, as the defendant’s additional claim for contribution or indemnity from another party (CPR 20.6)
Yes, as a counterclaim against the claimant (CPR 20.4)
Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
Correct. Your client, Sue, is the claimant and Amir is the defendant. Amir is seeking to include a counterclaim against a person ‘other than the claimant’ (i.e. other than Sue, namely, the employer) where Sue and the employer are jointly involved in the situation. (CPR 20.5)
incorrect
Yes, as an ‘other’ additional claim (CPR 20.7)
Incorrect. Whilst it is arguable that CPR 20.7 can be used for this type of claim, one of the other answers is more clearly correct. Have another look at the element and your workshop notes and rethink which type of Part 20 claim applies here.
The claimant claims £32,000. The defendant pleads £8,000 ‘set off’ in its defence and counterclaim against the claimant. If the claimant is successful at trial and the defendant is also successful at trial in its counterclaim, what is the effect of the judgment?
Defendant pays the claimant £24,000
Defendant pays the claimant £8,000
Claimant pays the defendant £8,000
Defendant pays the claimant nothing
Defendant pays the claimant £32,000
Defendant pays the claimant £24,000
Correct. The set off applies and extinguishes £8,000 of the claimant’s judgment against the defendant. The defendant therefore pays the claimant the net sum of £24,000.
If an applicant makes a standard with notice interim application, what is the timeframe within which the applicant must serve a copy of the application notice and supporting documentation on the respondent?
As soon as practicable before the hearing
As soon as practicable but not less than 3 clear days before the hearing.
Not less than 3 clear days before the hearing
As soon as practicable but at least 3 clear days after issuing the application notice.
Not less than 14 clear days before the hearing
As soon as practicable but not less than 3 clear days before the hearing.
Correct
Correct: if an applicant makes a standard with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as practicable but not less than 3 clear days before the hearing (CPR 23.7).
The directions order confirms that witness statements are due to be exchanged in 5 days’ time. The applicant wishes to apply to the court for extra time to exchange witness statements. The parties have been unable to agree an extension of time. How would the applicant make an interim application to apply for an extension of time to exchange witness statements?
With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.
Without notice as the object of the order would be defeated by providing notice.
Without notice due to the urgency.
With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.
With notice by filing at court an application notice and a witness statement and paying a fee.
With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.
Correct: an interim application is made by filing at court an application notice, a witness statement and a draft order and paying a fee.
incorrect
With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.
Incorrect
It is incorrect to say with notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee – the hearing date is something the court would endorse on the application notice upon issue to then be served on the respondent. Please revisit the element.
How, if at all, will a respondent know what evidence has been put forward by the applicant in support of a without-notice application?
The evidence will be served on the respondent before the hearing
The evidence will be served on the respondent after the hearing
The respondent will not know what evidence has been put forward in support of a without-notice application
The evidence will be served on the respondent after the hearing
Correct
Correct. The applicant must serve the application notice, evidence in support and order on the respondent as soon as possible after the hearing (CPR 23.9).
When is the first opportunity a claimant can apply for summary judgment against the defendant without needing the court’s permission?
Any time after proceedings have commenced.
After the claimant has filed particulars of claim.
At the same time as filing the directions questionnaire.
After the defendant has filed an acknowledgment of service.
After the defendant has filed an acknowledgment of service or a defence.
After the defendant has filed an acknowledgment of service or a defence.
Correct
The correct answer is the claimant can apply for summary judgment ‘after the defendant has filed an acknowledgment of service or a defence’ (CPR 24.4). To apply before this, the court’s permission would be needed. An incorrect answer is ‘after the defendant has filed an acknowledgment of service’ as this is not the best answer; the defendant could choose to only file a defence which would then be the trigger for the first opportunity a claimant has to apply for summary judgment. An incorrect answer is ‘after the claimant has filed particulars of claim’ as the trigger is a step by the defendant, not the defendant. An incorrect answer is ‘any time after proceedings have commenced’; this is the rule for when the defendant can first apply for summary judgment, not the claimant. An incorrect answer is ‘at the same time as filing the directions questionnaire’; this is often an ideal time for either party to apply for summary judgment, but it is not the first opportunity.
The claimant files a claim form and particulars of claim. The defendant files an acknowledgment of service indicating an intention to defend the claim. The claimant applies for summary judgment. Both parties attend the summary judgment hearing where the judge dismissed the application and makes a costs order. What order is the court most likely to make next?
Allocation to a track
Conditional order
Order the parties to file a statement of costs
Order to set aside the summary judgment hearing
Directions order for the defendant to file and serve its defence
Directions order for the defendant to file and serve its defence
Correct
A directions order for the defendant to file and serve its defence is correct. The summary judgment application was made before the defendant filed its defence and therefore the time for the defendant to file its defence is extended until after the summary judgment hearing (CPR 24.4(2)). The court has made a decision on summary judgment for dismissal of the application and so the claim will continue. The court may give directions for the defendant to file and serve the defence as this has not already taken place. An order to set aside the summary judgment hearing is incorrect as there is nothing on the facts to suggest this is appropriate e.g. both parties attended the summary judgment hearing. A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Allocation to a track is incorrect. Whilst the court will delay allocating the matter to a track until after the summary judgment hearing, it will want to see the defendant’s case (in the defence) first. Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing.
incorrect
Conditional order
Incorrect
A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Revisit this element in relation to outcomes of the hearing.
Order the parties to file a statement of costs
Incorrect
Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing. Revisit this element in relation to outcomes of the hearing.
The claimant ordered 20,000 laptops from the defendant. The laptops malfunction. The claimant issues a claim against the defendant claiming that 20,000 laptops are faulty. The defendant files a defence. The claimant believes that the defendant is entirely at fault and applies for summary judgment. If the claimant’s summary judgment application is successful, which order is most likely to be made by the court?
Conditional order
Dismissal of the application
Judgment on part of the claim
Dismissal of the claim
Judgment on the claim
Judgment on the claim
Correct
The correct answer is judgment on the claim. The claimant’s claim is in relation to 20,000 laptops (the entire order) and so, if successful on summary judgment, the claimant will get judgment on the claim and the entire claim is over. Dismissal of the claim is incorrect as this would be appropriate where the defendant successfully applies for summary judgment; it is the claimant who has applied here. Dismissal of the application is incorrect as this is appropriate where either the claimant or defendant’s application for summary judgment has failed, the summary judgment application is dismissed and the claim continues to trial. Conditional order is incorrect as there is nothing on the facts to suggest that the judge is not wholly convinced of the merits of one party’s case necessitating conditions ordered by the court. Judgment on part of the claim is incorrect because there are problems with the entire order of 20,000 laptops. There is nothing on the facts yet to suggest that part of the order is not faulty.
The court must not make an interim payment of more than________________________ .
Choose the correct missing words to complete the sentence.
66% of the likely amount of the final judgment
a reasonable proportion of the likely amount of the final judgment
A reasonable proportion of the estimated costs
A reasonable proportion of the sum claimed by the claimant
a reasonable proportion of the likely amount of the final judgment
Correct. See CPR 25.7.
Which of the following IS NOT one of the conditions on which an application for an interim payment can be based?
It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment.
The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.
The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
Correct
Correct. This IS NOT one of the conditions on which an application for an interim payment can be based. It is part of the rules relating to summary judgment. All the other answers are conditions on which an application for an interim payment can be based.
The claimant has made a personal injury claim against the defendant. The court has ordered judgment on liability in favour of the claimant, but the amount of damages have yet to be assessed. The claimant would like an interim payment as soon as possible and so asks the defendant for an interim payment. What is the best course of action for the claimant if the defendant does not agree to voluntarily make an interim payment?
Apply to the court for an interim payment as if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant.
Do not apply to the court for an interim payment and wait until damages are assessed.
Apply to the court for an interim payment as the claimant is entitled to an interim payment in a personal injury claim.
Apply to the court for an interim payment as the defendant has admitted liability.
Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.
Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.
Correct
Correct – the best course of action for the claimant to take if the defendant does not agree to voluntarily make an interim payment is to apply to the court. The claimant must satisfy one of the prescribed conditions (CPR 25.7) and, on the facts, has done this as the claimant has obtained judgment against the defendant.
The other options were not the best course of action: * The claimant cannot apply to the court for an interim payment as, on the facts, the defendant has not admitted liability. * The claimant cannot apply to the court for an interim payment as you are not given any facts to suggest that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant. * It is incorrect to say that a claimant is entitled to an interim payment in a personal injury claim. One of the prescribed conditions (CPR 25.7) must be satisfied in any type of claim. * It is not the best course of action to say ‘do not apply to the court for an interim payment and wait until damages are assessed’ because if one of the prescribed conditions (CPR 25.7) applies, the claimant has a choice to apply for an interim payment.
You act for a claimant in a personal injury claim. The claimant was badly injured by the defendant in a road traffic accident several months ago. The defendant has admitted liability in its defence. The claim is now at the case management stage. The claimant has not yet been able to return to work due to injuries sustained in the accident and has used all their savings to live on since the accident. The claimant has to move into new rented accommodation and needs money for the deposit and general expenditure for food and travel. Can the claimant apply to the court for an interim payment from the defendant at this stage of the proceedings?
No, because the claimant can only claim an interim payment pre-action.
Yes, because the period for filing a defence has expired.
No, because a final judgment has not been made against the defendant.
No, because the claimant cannot claim an interim payment during proceedings.
Yes, because the period for filing an acknowledgment of service has expired.
Yes, because the period for filing an acknowledgment of service has expired.
Correct
Correct. The claimant can apply to the court for an interim payment from the defendant because the period for filing an acknowledgment of service has expired an application for an interim payment can be made after this stage of the proceedings has been reached (CPR 25.6).
The incorrect answers are: Yes, the period for filing a defence has expired; this is not the rule (CPR 25.6). No, because the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek financial assistance on account of damages in certain situations during proceedings (CPR 25.6). No, because the claimant cannot claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. No, because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, this would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6)
incorrect
No, because the claimant cannot claim an interim payment during proceedings.
Incorrect. It is not the case that the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek an interim payment on account of damages in certain situations during proceedings (CPR 25.6). Please revisit the element.
No, because a final judgment has not been made against the defendant.
Incorrect. It is not the case that claimant cannot claim an interim payment because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6). Please revisit the element.
Yes, because the period for filing a defence has expired.
Incorrect. The claimant cannot apply to the court for an interim payment from the defendant on the basis that the period for filing a defence has expired; this is not the rule (CPR 25.6). Please revisit the element.
No, because the claimant can only claim an interim payment pre-action.
Incorrect. It is not the case that the claimant can only claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. Please revisit the element.
The defendant must satisfy the court of two matters before an order for security for costs can be made. One or more of the prescribed conditions in the rules must be satisfied, and having regard to all the circumstances, it must be ________ to make an order.
Choose the correct missing word to complete the sentence.
Reasonable
Necessary
Proportionate
Just
Just
Correct
Correct. See CPR 25.13. It would be wrong to say that it must be ‘necessary’. Whether it is ‘reasonable’ and ‘proportionate’ will be relevant considerations, and part of considering what is ‘just’, but ‘just’ is the key concept.
The claimant to a claim proceeding in the courts of England and Wales is a company with its registered office and central administration in North Carolina, USA. It has not got offices or assets anywhere outside of North Carolina, USA. You do not yet have access to its accounts in order to assess its financial situation. The defendant is a company registered in England and Wales which is currently in financial difficulties.
On the available facts, which condition, if any, could the defendant rely on to make an interim application for security for costs assuming that it is also able to satisfy the court that, in all the circumstances, it is just to make the order?
The defendant could rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
The defendant cannot rely on any of the conditions.
The defendant could rely on the condition that the claimant is resident out of the jurisdiction.
The defendant could rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it.
The defendant could rely on the condition that the defendant is an impecunious company.
The defendant could rely on the condition that the claimant is resident out of the jurisdiction.
Correct
Correct – the defendant could rely on the condition that the claimant is resident out of the jurisdiction as it is in North Carolina, USA which is not a State bound by the 2005 Hague Convention (CPR 25.13(2)(a)). The other options were incorrect: The defendant could not rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so because although the claimant is a company, there is no evidence on the available facts that it is impecunious. The defendant could not rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it because there is nothing on the facts to suggest that the claimant has taken any steps in relation to its assets. It cannot be said that the defendant cannot rely on any of the conditions because one does apply. The defendant could not rely on the condition that the defendant is an impecunious company because this is not a condition: all conditions are based on the claimant’s status/actions, not the defendant’s.
The claimant company is a breakfast cereal manufacturing company. The claimant has issued proceedings to claim losses of £200,000 from the defendant, a grain supplier, for breach of contract. You act for the defendant who has submitted its defence. Yesterday, a leading food trade magazine published an article about the claimant’s inability to meet customer demand for breakfast cereal and that it is experiencing cashflow difficulties. The defendant has therefore today checked the claimant’s most recent annual accounts filed at Companies House which show a loss of £215,000.
What would be the most appropriate interim application that the defendant might make?
Interim mandatory injunction
Interim payment
Interim prohibitory injunction
Extension of time to submit its defence
Security for costs
Security for costs
Correct
Correct – security for costs – because, if successful, a security for costs order would require the claimant to pay a sum of money into court (or by some other manner) to protect the defendant should it successfully defend the claimant’s case and be awarded costs. The defendant wants this protection as it has reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
The other options were incorrect: Interim payment is incorrect because that is an application made by a claimant (for an interim payment on account of damages which the defendant may be held liable to pay). Interim prohibitory injunction is incorrect because the defendant does not need an order from the court to require the claimant to refrain from doing an act which is causing irreparable or immeasurable damage to the defendant . Interim mandatory injunction is incorrect because the defendant does not need an order from the court to require the claimant to do an act to avoid causing irreparable or immeasurable damage to the defendant. Extension of time to submit its defence (CPR 3.1) is incorrect because the defendant has already filed its defence and so does not need extra time to do so.
The claimant and defendant are in dispute over which of them is the legal and beneficial owner of the voting shares in a company, Levison Limited (‘Levison’). Last week, the claimant obtained an interim injunction without notice, which prohibits the defendant from exercising the votes attached to these shares at a Levison shareholder meeting which is taking place next week. The claimant’s main argument for the injunction is that the defendant was intending to vote at the meeting in order to push through a resolution that will benefit the defendant’s expansion plans, but which would disadvantage the claimant. The defendant’s position is that, as the claimant actually owns a majority share in Levison aside from the disputed shares, the defendant’s vote would not have affected the outcome of the shareholder meeting. The with notice hearing is scheduled for tomorrow morning. Assuming the defendant’s statement is correct, which of the following outcomes is most likely at the with notice hearing?
The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act.
The injunction will continue because the defendant should still not be exercising the voting rights attached to the disputed shares.
The injunction will continue because injunctions granted without notice are always expressed to last until trial.
The injunction will be discharged at the eventual trial.
The injunction will be discharged and the court will accept an undertaking by the defendant not to do the act.
The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act.
Correct: if the defendant’s statement is correct, then the injunction will most likely be discharged at the with notice hearing. The principle that an injunction will not be obtained when it would serve no practical purpose (‘equity does not act in vain’) would most likely mean that the injunction would be discharged at the with notice hearing and the court would also consider whether or not to award damages to the defendant pursuant to the claimant’s undertaking in damages.
If the defendant’s statement is correct, the other options are less likely. The court is less likely to discharge the injunction at the eventual trial as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience; the trial may be some time away. The court is less likely to maintain the injunction on the basis that the defendant should still not be exercising the voting rights attached to the disputed shares as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience. This court is less likely to maintain the injunction on the basis that injunctions granted without notice are always expressed to last until trial as this reasoning is incorrect; in fact, injunctions made without notice will almost always last until the with notice hearing (rather than trial), at which point the court will decide whether they should continue. The court is less likely to discharge the injunction and accept an undertaking by the defendant not to do the act; on the facts the defendant has not offered an undertaking (and still intends to vote) and the court cannot force a party to offer an undertaking.
Your client is concerned that one of its competitors is about to launch a new product onto the market in infringement of your client’s patents and copyrights. Your client wishes to start civil proceedings for infringement and would like to apply for an interim injunction against the competitor to prevent the new product being launched. At the injunction hearing, if damages would not be an adequate remedy for your client, the applicant, what would the court consider next?
The court will next consider where the balance of convenience lies. Please revisit the American Cyamamid guidelines in this element.
The court will next consider whether the defence has a real prospect of success.
The court will next consider the merits of the case.
The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages.
The court will next consider whether there is a serious question to be tried.
The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages.
Correct
It is correct that the court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages. This is usually part of ‘step 2’ and if damages from the applicant’s undertaking would be an adequate remedy to the respondent, and if the applicant is financially able to satisfy any such undertaking, there are good reasons to grant an interim prohibitory injunction. Although the court may consider the other options at the injunction hearing, it is unlikely that they will be considered ‘next’ pursuant to American Cyanamid: The court will consider whether there is a serious question to be tried – the court would have already decided this step (step 1) before considering if damages are an adequate remedy because if this step cannot be met, the injunction will generally be refused. The court will consider where the balance of convenience lies – the court considers this step (step 3) if it cannot resolve an injunction application by finding the answer from step 2 (and, even though steps 2 and 3 are sometimes blurred, it would still be necessary for the court to consider whether the respondent would be adequately compensated before it can make any decision on the balance of convenience). The court will not separately consider whether the defence has a real prospect of success or the merits of the case at this stage: the court will consider whether there is a serious question to be tried as ‘step 1’, but after that, the key considerations are the adequacy of damages as set out above.
Which of the following statements is correct in relation to the applicant’s cross-undertaking in damages in an application for an interim injunction?
The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages.
The applicant’s cross-undertaking in damages can only be for the protection of the respondent
The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried
The applicant makes the cross-undertaking in damages to the respondent
The court can order an applicant to make a cross-undertaking in damages
The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages.
Correct – the grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages. The other options are incorrect: The applicant makes the cross-undertaking in damages to the respondent – no, it makes the cross-undertaking to the court. The court can order an applicant to make a cross-undertaking in damages - no, the court cannot order any party to make an undertaking so here it is subject to the willingness of the applicant. The applicant’s cross-undertaking in damages can only be for the protection of the respondent – no, the cross-undertaking can be for the benefit of others that have suffered damage by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction. It depends on what the court requires. The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried – no, the applicant’s cross-undertaking is usually considered as part of step 2 and sometimes 3 of the American Cyanamid. Serious question to be tried is step 1.
How many SRA principles are there are can you name them?
Rule of law; Confidence in profession ; Independence ; Integrity; Honesty; Diversity; Best interest
what are the consequences of not complying with the pre-action protocol?
costs and stay proceedings until pre-action is complied with
3 steps for court to issue claim form
dated
issue number
sealed
for which additional claims is the court’s permission needed
CPR 20.5 (counterclaim against the defendant and additional party) CHECK??
in what court could a personal injury claim of 40k start
county court
consequences if the claim form is not served within necessary time period and what to do if the party still wants to serve it
after the claim form is issued if not served within
- 4 months within the jurisdiction
- 6 months outside jurisdiction
then consequences: if time has expired then must issue a new claim form
can make an application to extend time for service if time has not expired
Which of the following statements best describes the costs rules of general application?
When deciding what costs order to make the court will have regard to three factors: the conduct of the party, the value of the claim and any settlement offers made.
The court has no discretion as to costs and is bound by the rule that the unsuccessful party will always pay for costs of the successful party.
The court has discretion as to costs but will adopt the starting position that the unsuccessful party pays the costs of the successful party only moving away from this if the conduct of the paying party makes it fair and just to do so.
The court has limited discretion as to costs and will always adopt the starting position that the unsuccessful party pays the costs of the successful party only moving away from this if the conduct of the receiving party makes it fair and just to do so.
The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party.
The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party.
Correct
This is correct. The court has discretion as to whether costs are payable, the amount of costs and when they are to be paid and the general rule on costs (CPR 44.2(2)) is correctly described in this answer. When making a costs order, the court will consider the conduct of both parties and not just the receiving party.
The defendant to a large negligence claim has recently been served with the claim form and particulars of claim. There is no specific pre-action protocol governing the matter but to date the defendant has tried to avoid litigation by providing a detailed letter of response to the initial letter of claim, complying with all requests for information and disclosing key documents relevant to the dispute. It has also suggested some form of alternative dispute resolution (‘ADR’) on three separate occasions. All of these invitations to engage in ADR have been rejected outright by the claimant with no explanation given. How will the court view the claimant’s conduct when exercising its discretion as to costs?
The court will expect the claimant to actively engage in ADR but will not consider a refusal to do so to fall under any consideration of party conduct when exercising its discretion on costs.
If the claimant goes on to win at trial the court is likely to penalise the claimant for its refusal to engage in ADR by rejecting outright any claim for costs incurred during the pre-action stage.
If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
If the defendant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
The court will not expect the claimant to actively engage in ADR and so it is unlikely there will be any costs consequences of its refusal should it go on to win at trial.
If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR.
Correct
This is correct. When exercising its discretion on costs the court will have regard to a number of factors contained within the rules in relation to what order to make (CPR 44.2(4)) and in relation to the amount of costs to be awarded (CPR 44.4(3)). One factor common to both of these decisions is that the court will have regard to the parties’ conduct. An example of party conduct that might have an impact on costs is that of an unreasonable refusal by one party to engage in ADR (and this refusal does appear to be an unreasonable refusal).
Which of the following statements best describes the qualified one way costs shifting regime (QOCS)?
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury which restricts the enforcement of costs against the claimant.
QOCS is the regime for the recovery of costs between parties in proceedings involving counterclaims for damages by the defendant to a personal injury claim which restricts the enforcement of costs against the defendant.
QOCS is the regime for the recovery of costs between parties involving claims for damages in respect of death and personal injury which prevents a costs order being made against a claimant.
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in excess of £100,000 in respect of death and personal injury which restricts the enforcement of costs against the claimant.
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury which restricts the enforcement of costs against the defendant.
QOCS is the regime for the recovery of costs between parties in proceedings involving claims for damages in respect of death and personal injury which restricts the enforcement of costs against the claimant.
Correct
This is correct. The rules on QOCS (CPR 44.13 – 16) provide that a costs order made against the claimant can only be enforced without the permission of the court to the extent that it does not exceed the order for damages and interest made in favour of the claimant. However, if the claimant wins the case, or any aspect of it they may recover and enforce costs orders in the usual way.
Where costs are fixed by the CPR for a particular item, this means that…
…if the court awards costs for that item, the sum awarded will be capped at the sum set out in the CPR, unless the court orders otherwise.
…if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.
…a party is entitled to payment of those costs by the opponent, unless the court orders otherwise.
…if the court awards costs for that item, the sum awarded will be as set out in the CPR.
…if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise.
Correct
Correct. The fixed costs regime applies unless the court orders otherwise. The fixed costs regime is about deciding how much costs should be paid if they are going to be paid, not whether costs should be paid.
If an application is due to be heard at 10am on Wednesday 5 November, when is the latest that a statement of costs (N260) can be filed and served in relation to that application?
10am on Tuesday 4 November
10am on Monday 3 November
4pm on Monday 3 November
4pm on Tuesday 4 November
10am on Tuesday 4 November
Correct
Correct. The statement of costs must be filed and served party not less than 24 hours before the time fixed for the hearing.
In which circumstances will costs be summarily assessed?
At the end of trials and interim hearings lasting not more than one day.
At the end of fast-track trials and at the end of interim hearings lasting not more than one day.
At the end of fast-track trials lasting not more than one day and at the end of interim hearings lasting not more than one day.
At the end of fast-track trials lasting not more than one day and at the end of interim hearings.
At the end of fast-track trials and at the end of interim hearings lasting not more than one day.
correct
A claimant makes a successful application to court to adduce evidence from a further witness of fact. The hearing of the application lasted for an hour and at the end of the hearing the judge ordered that costs be in the case. Which of the following statements best describes the effect of the costs order made by the judge?
The decision about who pays the costs of the interim hearing of the defendant’s application is put off to a later occasion.
The party in whose favour this order is made will recover the costs of the interim hearing from the other party regardless of who eventually wins at trial.
If the claimant is successful and receives an order that it should be entitled to its costs at the end of trial, it cannot include the costs of opposing the defendant’s application.
The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party.
If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of bringing its application.
The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party.
Correct
This is correct. The effect of an interim order of ‘costs in the case’ is that the party that gets its costs following the final hearing of the dispute will recover its costs of that interim hearing. Putting off costs until a later occasion (not necessarily final hearing) is known as ‘costs reserved’. Recovery of the costs following the hearing regardless of who wins at trial is known as ‘costs in any event’. A situation where a claimant is awarded costs at the end of trial but cannot include its costs of the interim hearing would be an order for the ‘defendant’s costs in the case’. A situation where a defendant is awarded costs at trial but the claimant does not have to pay the defendant’s costs of the interim hearing would be an order for the ‘claimant’s costs in the case’.
A claimant has just succeeded in its interim application to amend its budget in light of significant developments in the proceedings. The hearing of the application lasted five hours and involved complex discussions on quantum and the value of forensic evidence. At the end of the hearing the judge ordered the claimant’s costs in any event. Which of the following statements best describes the effect of this order on the assessment of costs?
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be.
Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place at a later date when the officer will look at the costs incurred and decide how much should be paid.
Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place immediately at the end of the hearing.
The judge will take the claimant’s statement of costs and unless it radically departs from the figures in the claimant’s budget the court will award those costs to be paid immediately or at the latest within 7 days of the order being made.
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing and then make a record of those costs so that they can be paid to the claimant following the final hearing of the dispute.
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be.
Correct
This is correct. Following a ‘costs in any event’ order at a hearing which has lasted less than one day the court will go on to summarily assess the claimant’s costs before deciding on an amount. The defendant must then pay these costs within 14 days of the costs order being made (CPR 44.7). It is the judge that will summarily assess the costs and not an authorised court officer. When summarily assessing costs the court will be primarily concerned with each party’s statement of costs and their respective submissions. The influence of the budget at this interim hearing will be less important than when the judge is deciding costs of the whole proceedings following the final hearing of the dispute.
incorrect
The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing and then make a record of those costs so that they can be paid to the claimant following the final hearing of the dispute.
Incorrect
Incorrect: This is not the effect of a costs in any event order. Please make sure you review the information on summary assessment within this element and are familiar with when and how it applies (44PD9.1 and 9.2). You might also want to revisit the information on interim costs orders (44PD4.2).
Given the complexities of the issues involved the judge is likely to involve an authorised court officer in the quantification of costs. Such assessment will take place immediately at the end of the hearing.
Incorrect: It is the judge that will summarily assess the costs and not an authorised court officer. Please make sure you review the information on summary assessment within this element and are familiar with when and how it applies (44PD9.1 and 9.2).
A judge hearing a defendant’s application to extend the time for service of a defence has granted the defendant the full 28 day extension requested. In her judgment she is highly critical of the claimant for failing to agree to any extension and refers to aspects of the claimant’s conduct which have put the defendant in a difficult position in the proceedings so far. Given the above which of the following interim costs orders is the judge most likely to make.
The claimant to pay the defendant’s costs in any event
The defendant’s costs thrown away
No order as to costs
The defendant to pay the claimant’s costs in any event
Costs in the case
The claimant to pay the defendant’s costs in any event
Correct
This is correct. The judge has found in the defendant’s favour and is very critical of the claimant’s behaviour. The implication is that the judge has sympathy with the defendant and so is likely to award the costs it has incurred in bringing the application. The other options are not appropriate given the facts of the scenario. Costs thrown away relate to where a judgment or order is set aside, costs in the case would defer costs to final hearing and is less appropriate where the judge clearly favours one party’s position over the other and similarly no order as to costs ignores the fact that the judge is highly critical of the claimant’s conduct and sympathetic to the defendant’s position.
Which of the following is not an example of the court’s power to manage cases? a) Extend time to comply with the court’s order to file a witness statement by 1st June. b) Require a party to attend court. c) Require a party to change its legal representative due to high legal costs. d) Require a party to file a costs budget. e) Require a party to take a step in the proceedings to further the overriding objective.
Require a party to attend court.
Require a party to file a costs budget.
Require a party to change its legal representative due to high legal costs.
Require a party to take a step in the proceedings to further the overriding objective.
Extend time to comply with the court’s order to file a witness statement by 1st June.
Require a party to change its legal representative due to high legal costs.
Correct
Require a party to change its legal representative due to high legal costs is the correct answer as this is not an example of the court’s power to manage cases (CPR 3.1). The court will not interfere with the legal representative a party chooses. If the court considers that the legal representative is charging excessive legal costs, the court will address this when making orders as to the recovery of costs.
The other possibilities are all examples of the court’s power to manage cases: Extend time to comply with the court’s order to file a witness statement by 1st June. Require a party to attend court. Require a party to file a costs budget. Require a party to take a step in the proceedings to further the overriding objective.
When can a court strike out a defendant’s statement of case? Choose the best answer.
The defendant has failed to comply with a rule, practice direction or court order.
The defendant has not filed a defence.
The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial.
The defendant has not filed a counterclaim.
The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim.
The defendant has failed to comply with a rule, practice direction or court order.
Correct
Correct answer: the court can strike out a defendant’s statement of case if the defendant has failed to comply with a rule, practice direction or court order. Failure to comply with a rule, practice direction or court order is one of the grounds for strike out (CPR 3.4(c)). The others are (a) that the statement of case discloses no reasonable grounds from bringing or defending the claim and (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.
The defendant has not filed a defence is incorrect. This is a ground for default judgment (rather than strike out) (CPR 12.3). It is easy to confuse strike out, summary judgment and default judgment. The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial is incorrect. These are the grounds for summary judgment (rather than strike out) (CPR 24.2). It is easy to confuse strike out, summary judgment and default judgment. The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim is not the best answer. It is unlikely to amount to one of the grounds for strike out, for example, (a) where the statement of case discloses no reasonable ground for bringing or defending a claim. To fall within this ground it is more likely that a defendant would have only filed a bare denial with no other information. The defendant has not filed a counterclaim is incorrect; the defendant is not obliged to file a counterclaim in addition to a defence and, indeed, may not have a counterclaim against the claimant.
incorrect
The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial is incorrect. – These are the grounds for summary judgment (rather than strike out) (CPR 24.2). It is easy to confuse strike out, summary judgment and default judgment. Please revisit this element with particular reference to the court’s power to strike out.
The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim.
Incorrect
The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim is not the best answer. It is unlikely to amount to one of the grounds for strike out, for example, (a) where the statement of case discloses no reasonable ground for bringing or defending a claim. To fall within this ground it is more likely that a defendant would have only filed a bare denial with no other information. Please revisit this element with particular reference to the court’s power to strike out.
Match the ground for striking out with the correct example of it
The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
The statement of case discloses no reasonable ground for bringing or defending the claim
There has been a failure to comply with a rule, practice direction or court order
The claimant refuses to allow inspection of a document which has been disclosed and which is crucial to the case.
The particulars of claim allege that “The Defendant has been conducting his business in a way which has caused me to lose money, in excess of £5,000, and he knew that would happen”.
The claim form and particulars of claim set out a breach of contract claim against the defendant. The claimant issues this claim 5 times simultaneously.
The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
The claim form and particulars of claim set out a breach of contract claim against the defendant. The claimant issues this claim 5 times simultaneously.
The statement of case discloses no reasonable ground for bringing or defending the claim
The particulars of claim allege that “The Defendant has been conducting his business in a way which has caused me to lose money, in excess of £5,000, and he knew that would happen”.
There has been a failure to comply with a rule, practice direction or court order
The claimant refuses to allow inspection of a document which has been disclosed and which is crucial to the case.
Where a CPR / PD / court order requires a party to do something and stipulates the consequences of failing to comply, by how long can the parties extend the deadline?
28 days (provided this does not put a hearing date at risk).
There is no limit (provided the parties do not put a hearing date at risk).
The parties cannot extend such a deadline.
14 days (provided this does not put a hearing date at risk).
28 days (provided this does not put a hearing date at risk).
correct
What are the different stages of the approach to relief from sanctions as set out in Denton?
Stage 1
Identify and assess the seriousness and significance of the failure to comply – if neither serious nor significant, relief should be granted.
Stage 2
Consider why the default occurred
Stage 3
Evaluate all the circumstances of the case with particular weight to the need to conduct litigation efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders
The claimant files its costs budget at court 60 minutes late. On the day of filing, the claimant’s solicitor had an accident on the way in to work and, although uninjured, had to attend hospital for several hours to get checked out. Once released from hospital, the solicitor filed the costs budget. The solicitor applies for relief from sanctions the following day. What factor is most likely to influence the court when considering whether to grant the relief from sanctions?
The breach must be punished to enforce compliance with rules, practice directions and court orders.
The breach is serious and significant.
The default occurred without good reason.
The breach prevents the case being conducted efficiently and at proportionate cost.
The breach is not serious or significant.
The breach is not serious or significant.
Correct
The best answer is that the breach is not serious or significant. The case of Denton requires the court to look at three stages as part of its application of the provisions in relation to relief from sanctions (CPR 3.9). The first stage is to identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order. If the breach is neither serious nor significant, then relief should be granted. Here, the breach is not serious or significant and so relief from sanctions will usually be granted and it will not be necessary for the court to spend much time on the second and third stages.
The default occurred without good reason is not the best answer. The second stage of the Denton test is that if the breach is serious and significant, the court will consider why the default occurred. As stage one is satisfied, the court does not need to consider the second stage in any depth. In any event, here, there is good reason for the default.
The breach prevents the case being conducted efficiently and at proportionate cost is not the best answer. This is part of the third stage of the Denton test and deals with CPR 3.1(a). As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(a) does not point towards the refusal of relief as the breach did not prevent the litigation from being conducted efficiently and at proportionate cost, and did not imperil any further hearing date or otherwise disrupt the conduct of the litigation.
The breach must be punished to enforce compliance with rules, practice directions and court orders is not the best answer. As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(b) does not point towards the refusal of relief as the breach is near the bottom of the range of seriousness.
The breach is serious and significant is not the best answer. It is unlikely that the court would find this breach serious and significant.
Putting aside personal injury claims / tenancy claims, the financial limit on the small claims track is:
£5,000
£25,000
£15,000
£50,000
£10,000
£10,000
Correct. Well done! This is the correct limit (CPR 26.6).
Once Directions Questionnaires have been filed, the Court will always order that there be an allocation hearing. True or false?
False
True
False
Correct
Correct. The court will only order an allocation hearing if it considers it necessary (CPR 26.5(4)).
When should the parties file and serve a Directions Questionnaire?
At least 3 days prior to the Case Management Conference.
No later than the date specified on the Notice of Proposed Allocation.
At any point after service of the Defence but prior to the hearing of a Case Management Conference
At the same time as service of the Defence.
No later than the date specified on the Notice of Proposed Allocation.
Correct
Correct. After service of the Defence, the court will provisionally decide the track most suitable for the claim and issue a notice of proposed allocation. This will require the parties to file and serve Directions Questionnaires and will include the date by which this must be done (CPR 26.3(6)).
You are a solicitor at Price Prior and you act for Exclusive Builders Ltd (‘EBL’). EBL are claiming £27,500 in damages, interest and costs for breach of contract and negligence against Stanleys Steel Plc (‘SSP’) whom they employed to undertake the specialist steel work required in the construction of a large, state-of-the-art conference centre. The total amount of damages claimed includes £2,000 in interest and £1,580 in costs. SSP’s primary case is there has been no breach of contract or negligence; it has also pleaded that EBL is contributory negligent and the claim should be reduced by £15,000 as a result. EBL has appointed two experts; a surveyor, Mr Singh and quantum expert, Mr Bell. Similarly, SSP has appointed two experts Mr Smith, a surveyor and Mr Pagne, a quantum expert. Only Mr Bell and Mr Pagne will give oral evidence at trial. Trial is expected to last one day. What is the ‘normal track’ for this claim?
The normal track is the fast track.
The normal track is the multi-track because it is over £25,000.
The normal track is the multi-track because the value of the claim for allocation purposes is £42,500.
The normal track is the multi-track because 2 experts have been appointed by each party.
The normal track is the fast track.
Correct
Correct! Well done. The claim is for under £25,000. When assessing financial value for allocation purposes, the court will disregard any claim for interest, costs and any contributory negligence (CPR 26.8(2)). The maximum value for this claim for allocation purposes is therefore £23,920. The fast track is the normal track for claims of this value only where the trial is estimated to be one day or less and where oral expert evidence is limited to one expert per party in relation to any expert field and expert evidence is limited to two different expert fields (CPR 26.6(5)) – the trial length and evidence are so limited in this case.
incorrect
The normal track is the multi-track because it is over £25,000.
Incorrect. When assessing financial value for allocation purposes, the court will disregard any amount not in dispute ie any claim for interest, costs and any contributory negligence (CPR 26.8(2)). Please revisit this element.
The normal track is the multi-track because 2 experts have been appointed by each party.
Incorrect. The expert evidence does not point to the multi-track. Please revisit this element.
The normal track is the multi-track because the value of the claim for allocation purposes is £42,500.
Incorrect. When assessing financial value for allocation purposes, the court will disregard any claim for interest, costs and any contributory negligence (CPR 26.8(2)). Please revisit this element.
In relation to a claim allocated to the small claims track, the general rule is that even if successful at trial a party…
…cannot recover costs from an opponent.
…can only recover limited fixed costs, court fees, counsel’s charges and witness expenses from an opponent.
…can only recover limited fixed costs, court fees and witness expenses from an opponent.
…can only recover limited fixed costs from an opponent.
…can only recover limited fixed costs, court fees and witness expenses from an opponent.
correct
How are documents / statements from witnesses dealt with on the small claims track?
Standard disclosure is the ordinary order, to take place 28 days before trial. Witness statements are not used on the small claims track.
There is no order for disclosure or exchange of witness statements. Parties are required file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing.
Standard disclosure is the ordinary order, to take place 28 days before trial. Witness statements are exchanged 14 days before trial in relation to any witness which is not attending the hearing. Witnesses attending the hearing do not need to provide statements in advance.
There is no order for disclosure or exchange of witness statements. Parties are required file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing.
Correct. This is the normal direction for a small claims track dispute.
Match the direction to the deadline in relation to the standard fast track directions (which the court can alter if it wishes). The deadline is expressed as the number of weeks after notice of allocation.
Disclosure
Exchange of witness statements
Exchange of experts’ reports
Filing of pre-trial checklists
Trial date / period
Disclosure
4
Exchange of witness statements
10
Exchange of experts’ reports
14
Filing of pre-trial checklists
22
Trial date / period
30
When does the disclosure report need to be filed (assuming one is needed)?
In accordance with the directions made at the CMC
Not less than 14 days before the first CMC
Not less than 21 days before the first CMC
Not less than 7 days before the first CMC
With the directions questionnaire
Not less than 14 days before the first CMC
Correct. (CPR 31.5)
The parties must file agreed / proposed directions with the court….
At least 7 days before any CMC
At least 14 days before the first CMC
At least 14 days before any CMC
At least 7 days before the first CMC
At least 7 days before any CMC
Correct. The parties should attempt to agree them first. (CPR 29.4)
The main purpose of a CMC is to…
Ensure the parties and their representatives are considering settlement.
Determine directions for the future conduct of the case.
Determine any issues which the parties wish to be determined.
Review the statements of case and ensure they are clear and complete.
Determine directions for the future conduct of the case.
Correct. Whilst the court will encourage settlement, and may assist with other issues, the court’s primary concern is directions (CPR 29.2(1)).
To which one of the following would the costs management regime likely apply, assuming each claim was commenced 2 months ago:
A breach of contract claim in the High Court, seeking £25 million.
A negligence claim in the High Court, seeking sums to be assessed, but where the claim states that the value is £10 million or more.
A debt claim in the County Court, when the debt is £24,000.
A personal injury claim in the County Court valued at £45,000.
A personal injury claim in the County Court valued at £45,000.
Correct
Correct. This would appear to be a multi-track claim and, on these facts, does not fall into any of the exceptions to the costs management regime.
In a claim valued at just over £100,000, the first CCMC has been listed for Friday 30 November. When does the costs budget need to be filed?
Thursday 8 November
Thursday 22 November
Friday 23 November
Friday 9 November
Thursday 8 November
Correct
Correct. Where the stated value of the claim is £50,000 or more, the budget must be filed not less than 21 days before the first CCMC. Counting the time correctly takes you to Thursday 8 November.
incorrect
Friday 9 November
Incorrect
Incorrect. It appears that you know that where the stated value of the claim is £50,000 or more, the budget must be filed not less than 21 days before the first CMC. However, you have counted the time incorrectly. Revisit the counting time material within the element ‘counting time’.
Parties should only use page 1 of the Precedent H if:
The monetary value of the claim is less than £25,000 or if the party’s budgeted costs do not exceed £10,000.
The monetary value of the claim is less than £25,000 and if the party’s budgeted costs do not exceed £10,000.
The monetary value of the claim is less than £50,000 or if the party’s budgeted costs do not exceed £25,000.
The monetary value of the claim is less than £50,000 and if the party’s budgeted costs do not exceed £25,000.
The monetary value of the claim is less than £50,000 or if the party’s budgeted costs do not exceed £25,000.
correct
Budgets do not include:
Disbursements.
Solicitor’s charges.
Estimated future costs.
Incurred costs.
Estimated opponent’s costs.
Estimated opponent’s costs.
Correct. Your opponent will set out their incurred and estimated costs in their own budget.
In a claim valued at just over £100,000, the first CMC has been listed for Friday 30 November. By when does the budget discussion report need to be filed?
On Friday 23 November at the latest.
On Friday 16 November at the latest.
On Thursday 15 November at the latest.
On Thursday 22 November at the latest.
On Thursday 22 November at the latest.
Correct
Correct. You have correctly understood when the budget discussion reports must be filed, and you have counted time correctly.
Assume that budgets have been filed. Which of the following most accurately states when the court will make a costs management order (CMO)?
The court will only make a CMO if it concludes that the litigation will not be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.
The court will make a CMO unless it is satisfied that the budgeted costs are in accordance with the overriding objective.
The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.
The court will make a CMO in all cases (to which the costs management regime applies) in order to ensure that the litigation is conducted justly and at proportionate cost.
The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.
Correct. This is what the relevant rule states (CPR 3.15(2)).
incorrect
The court will make a CMO in all cases (to which the costs management regime applies) in order to ensure that the litigation is conducted justly and at proportionate cost.
Incorrect. Revisit this element and/or CPR 3.15.
The court will make a CMO unless it is satisfied that the budgeted costs are in accordance with the overriding objective.
Incorrect. Revisit this element and/or CPR 3.15.
Where a court has decided to make a Costs Management Order (CMO), how does it deal with a part of a party’s budget in relation to estimated costs which the other party has agreed (as recorded in the relevant Budget Discussion Report)?
The CMO records that the relevant part of the budget has been agreed, unless the court wishes to substitute its own figure.
The CMO records that the relevant part of the budget has been agreed. The court will not change the agreed figure.
The court will take into account that the relevant part is agreed when deciding what would be an appropriate figure for that part CMO.
The fact that a party has agreed part of the other party’s budget is not relevant to the exercise that the court carries out when making a CMO.
The CMO records that the relevant part of the budget has been agreed. The court will not change the agreed figure.
Correct. The court cannot interfere with agreed parts of the budget: if it objects to the figure agreed, the court is likely to record a comment to that effect which a subsequent judge might take into account when it comes to assessment (CPR 3.15).
If a judge is assessing costs on the standard basis at the conclusion of a matter, what impact does a Costs Management Order (CMO) have on her task?
The judge will cap the costs at the figures in the budget.
The CMO is not relevant when it comes to assessing costs.
The judge will assess the costs at the figures in the budget, unless the judge considers it unjust to do so.
The judge will cap the costs at the figures in the budget, unless there is good reason not to do so.
The judge will cap the costs at the figures in the budget, unless there is good reason not to do so.
Correct
Correct. This is what the relevant rule states (CPR 3.18), when combined with the general principle that a party cannot recover a greater sum for costs from an opponent than it has in fact incurred.
A party fails to file a budget by the deadline. What is the default consequence?
The court will determine what figures should have been in the budget.
They will be treated as having filed a budget providing nothing for the costs of the litigation.
They will be treated as having filed a budget containing sums equal to those proposed by the other party.
They will be treated as having filed a budget comprising only the applicable court fees.
They will be treated as having filed a budget comprising only the applicable court fees.
Correct
Correct! Well done (CPR 3.14).
An applicant makes an application for security for costs with a return date of Friday 22 October. What is the latest date that the applicant might be permitted to serve a copy of the application notice and supporting documentation on the respondent (without further order from the court)?
Monday, 18 October.
Tuesday, 19 October
Friday, 15 October
As soon as possible before the hearing
Thursday, 21 October
Monday, 18 October.
Correct
Correct: if an applicant makes a with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as possible but not less than 3 clear days before the hearing (CPR 23.7). The other options were not correct: * As soon as possible before the hearing – this is only part of the rule on the service time limit in this situation (CPR 23.7). * Tuesday, 19 October. This is not 3 ‘clear’ days before the hearing. * Friday, 15 October. This is not the correct time limit for standard with notice interim applications (CPR 23.7). * Thursday, 21 October (you could be confusing the application notice and evidence with the statement of costs, which can be served 24 hours before the hearing).
incorrect
As soon as possible before the hearing
-key word: latest date!
Incorrect. The answer is not ‘as soon as possible before the hearing’ – this is only part of the rule on the service time limit in this situation (CPR 23.7). Please revisit the interim applications and security for costs elements and, if necessary, the counting time element.
For a summary judgment application, what is the latest date by which the applicant must serve the application documentation on the respondent if the hearing is to take place on Friday 22 October?
Monday 18 October
Friday 8 October
Friday 15 October
Thursday 7 October
Thursday 14 October
Thursday 7 October
Correct
Correct – the applicant must give at least 14 days’ notice of the date fixed for the hearing (CPR 24.4(3)).
A defendant makes an application for security for costs against the claimant two weeks before the trial of the claim. The claimant opposes the application.
The claimant company is based overseas in the USA with no assets or operations elsewhere. It has been financially solvent for many years holding both liquid and illiquid assets (as publicly available accounts across the years have shown), and has a strong claim against the defendant.
What is the most accurate description of the likely outcome of the defendant’s security for costs application?
The defendant is likely to be successful in its application because the claimant has the ability to comply with any order made for security for costs.
The defendant is likely to be successful in its application because it is not using the application to stifle the claimant’s claim.
The defendant is likely to be unsuccessful in its application because there is no reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
The defendant is likely to be unsuccessful in its application because of its delay in making the application.
The defendant is likely to be successful in its application because the claimant is resident out of the jurisdiction (but is not resident in a state bound by the Hague Convention 2005).
The defendant is likely to be unsuccessful in its application because of its delay in making the application.
Correct. Although the defendant will likely be able to establish that one of the prescribed conditions for security for costs exists (CPR 25.13(2)(a)) and that the claimant has the ability (eg funds) to pay into court or to give a guarantee, the court is likely to refuse the application due to the application of the further discretionary factors . The defendant has left it until just two weeks before the trial to make the application when the facts justifying the order have been known from the outset ie that the claimant is out of the jurisdiction and in a location where enforceability of the costs order will be difficult, and that it has the funds to pay security. An application for security for costs should be made promptly and as soon as facts justifying the order are known and the court is likely to refuse to exercise its discretion to make the order on the basis that there has been a significant delay in making the application.
incorrect
The defendant is likely to be successful in its application because the claimant is resident out of the jurisdiction (but is not resident in a state bound by the Hague Convention 2005).
Incorrect
Incorrect. Please review your materials on security for costs. You need to know the test which includes establishing one of the prescribed conditions for security for costs (CPR 25.13) and the application of the court’s discretion. You need to be able to apply these factors accurately to the case facts given so that you can indicate the likely outcome of the application and the basis for that outcome. This option mentions the correct prescribed condition but omits to consider the discretionary factors that also need to be applied.
The defendant is likely to be unsuccessful in its application because there is no reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
Incorrect. Please review your materials on security for costs. You need to know the test which includes establishing one of the prescribed conditions for security for costs (CPR 25.13) and the application of the court’s discretion. You need to be able to apply these factors accurately to the case facts given so that you can indicate the likely outcome of the application and the basis for that outcome. This option mentions just one discretionary factor and the overall application to the facts given is likely wrong, leading to an incorrect conclusion.
The defendant is likely to be successful in its application because the claimant has the ability to comply with any order made for security for costs.
Incorrect. Please review your materials on security for costs. You need to know the test which includes establishing one of the prescribed conditions for security for costs (CPR 25.13) and the application of the court’s discretion. You need to be able to apply these factors accurately to the case facts given so that you can indicate the likely outcome of the application and the basis for that outcome. This option mentions just one discretionary factor and the overall application to the facts given is likely wrong, leading to an incorrect conclusion.
A claimant has commenced proceedings seeking in the region of £200,000 in relation to personal injuries. A defence has been filed defending the claim in full. It is clear that the claimant will be awarded at least £50,000 in relation to the injuries at trial, but the prospects of recovering more than this are unclear. The claimant needs to make adaptations to their house to cope with their injuries, but does not have the money to do so. Does an application for an interim payment by the claimant have good prospects of success?
Yes, because the claimant does not have any money to make the necessary adaptations.
No, because the defendant has not admitted liability.
Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
No, because the claimant has not obtained judgment against the defendant.
No, because the prospects of recovering the majority of the claim are uncertain.
Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
Correct. CPR 25.7(1) provides that a condition giving the court jurisdiction to award an interim payment is that the court “is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant”, and this is clearly satisfied if ‘it is clear that the claimant will be awarded at least £50,000’ at trial. An admission of liability or having already obtained judgment are alternative conditions, but they are not necessary ones, so the absence of these does not prevent an application for an interim payment. It does not matter that the very good prospects only relate to 25% of the sum claimed, as long as this is still a substantial amount (but note that the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment – CPR 25.7(4)). The fact that the claimant does not have any money to make the necessary adaptations is not the main factor giving the application good prospects of success.
A wealthy supermarket chain wants to obtain an interim injunction against a car dealer possessing the neighbouring land to prevent the car dealer from parking cars on what the supermarket considers to be its own land. The claim has a 60% chance of success. If the car dealer goes ahead with this parking, the supermarket will suffer losses of approximately £400 for each day of infringement, being the cost of the supermarket renting the required space from a different neighbouring property instead. The car dealer has substantial assets and available cash. Which of the following best explains why an application for an interim injunction is likely to fail?
Damages will be an adequate remedy for the supermarket if the claim succeeds.
The claim does not have sufficient prospects of success.
The defendant has sufficient assets to pay the costs of opposing the application.
The parking complained of has not taken place yet.
The supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it.
Damages will be an adequate remedy for the supermarket if the claim succeeds.
correct
The approach the court takes to determining whether to grant an interim injunction stems from the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 and in overview is: Step 1 - Is there a serious question to be tried? If not, an interim injunction is unlikely to be granted. But in this case, the claim has 60% prospects of success, so there is clearly a serious question to be tried, and it would be wrong to say that this claim does not have sufficient prospects of success. Step 2 - Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? An injunction is unlikely to be granted unless damages would be inadequate for the applicant. In this case, there is nothing to suggest damages would be inadequate, and this is why an interim injunction is unlikely to be obtained. Examples of situations where damages would be inadequate are where the harm is irreparable or impossible to calculate – not the case here. If damages were to be inadequate for the applicant, you would consider the situation from the respondent’s point of view – is it possible to compensate the respondent if it turns out that an injunction should not have been granted (and could the applicant honour an undertaking to that effect)? This should be possible here from the facts we are given – the applicant appears to have sufficient money to honour an undertaking to pay the respondent damages and so it would be wrong to say that the supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it. Step 3 - Where does the balance of convenience lie? Given the conclusions reached in relation to Step 2, this step is not very relevant. The other answers are wrong because interim prohibitory injunctions are ideal where the behaviour complained of has not yet taken place and because the respondent having sufficient assets to pay the costs of opposing the application does not that mean that it has good grounds to oppose it.
When might the court order the parties to give disclosure?
When giving directions on allocation, at a case management conference, or on a party’s application.
At a case management conference.
On a party’s application.
At a case management conference or on a party’s application.
When giving directions on allocation.
When giving directions on allocation, at a case management conference, or on a party’s application.
Correct. These are all possibilities.
Max has brought a claim against Bill following a road traffic accident. The damages for Max’s injuries are estimated at £35,000. The court has allocated the claim to the multi-track and listed a CMC. When must Max file and serve his disclosure report?
At least 28 days before the CMC.
At least 14 days before the CMC.
At least 7 days before the CMC.
Max is not obliged to file or serve a disclosure report.
At least 21 days before the CMC
Max is not obliged to file or serve a disclosure report.
Correct. There is no obligation to file and serve a disclosure report in a personal injury claim.
incorrect
At least 14 days before the CMC.
Incorrect. Check you have understood the type of cases where a disclosure report is required. Revisit this element and/or CPR 31.
Kelly has brought a claim against Shazia for loss of profits following a breach of contract by Shazia. The claim is valued at £65,000. The court has allocated the claim to the multi-track and listed a CMC. When must Kelly file and serve her disclosure report?
At least 28 days before the CMC.
At least 21 days before the CMC
Kelly is not obliged to file or serve a disclosure report.
At least 14 days before the CMC.
At least 7 days before the CMC.
At least 14 days before the CMC.
Correct. (CPR 31.5(3)).
The judge in a multi-track case is likely to consider at the first CMC…
What type of disclosure order, if any, to make.
Whether or not to order standard disclosure.
Whether or not to order specific disclosure.
What type of disclosure order to make.
Whether the parties have complied with their disclosure obligations.
What type of disclosure order, if any, to make.
Correct. (CPR 31.5).
incorrect
What type of disclosure order to make.
Incorrect. The court does not have to make any order for disclosure. Reconsider this element and/or CPR 31.5.
What is the usual order made in relation to disclosure in a claim allocated to the fast track?
Disclosure of unknown adverse documents.
Standard disclosure.
The parties must file and serve documents they intend to rely on 14 days before the final hearing.
No order for disclosure.
There is no ‘usual order’.
Standard disclosure.
Correct – see the standard fast track directions (PD28).
The approach recommended in this element for considering what a party should disclose under an order for standard disclosure is to consider…
Is it a document, is it or was it in the party’s control, does the party wish to rely on it?
Is it a document, does it fall within the test for standard disclosure (CPR 31.6)?
Is it a document, is it or was it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?
Is it a document, is it or was it in the party’s control, does it fall within a reasonable search (CPR 31.7)?
Is it a document, is it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?
Is it a document, is it or was it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?
Correct. This is the approach recommended in this element.
Which of the following is not a document?
A text message.
Information stored on a computer about when a document was created, and who by.
A voicemail.
A phone number memorised by one of the parties.
An email.
A phone number memorised by one of the parties.
Correct
Correct. See the definition of document (CPR 31.4). The other answers are all documents - information stored on a computer about when a document was created, and who by, is also included – this is called ‘meta data’.
Which of the following falls outside of the concept of ‘control’ within the disclosure rules (CPR 31.8) as far as Party X is concerned?
A document in the possession of a witness who is supporting Party X.
A document which was destroyed in a fire at Party X’s premises.
A document obtained by Party X’s solicitor to be used as evidence in Party X’s case.
A document held by a director of Party X in his capacity as a director of Party X.
A document in the possession of a witness who is supporting Party X.
Correct. It may be that this will be provided to Party X if Party X asks for it, and at that point it would become in Party X’s control. However, until that happens, it is not within the meaning of ‘control’ within the disclosure rules (CPR 31.8). The other documents are or were all in Party X’s control. Party X’s director would hold documents like the one described as agent for Party X. Party X would have a right to inspect / take possession of a document obtained by its own solicitor for use as evidence.
Which of the following is not prescribed as a relevant factor when deciding the reasonableness of a search for the purposes of standard disclosure (CPR 31.7)?
The resources of the party required to carry out the search.
The significance of any document which likely to be located during the search.
The ease and expense of retrieval.
The number of documents involved.
The nature and complexity of the proceedings.
The resources of the party required to carry out the search.
Correct
Correct. This is not stated in the rules as a relevant factor, but the court can still take it into account if it thinks it is appropriate to do so eg under the overriding objective. The list of factors in the rules (CPR 31.7) is not a list of all possible relevant factors.
The CPR lists 3 exceptions to the general right to inspect a document which has been disclosed. Which of the following IS NOT one of them?
Allowing inspection would be disproportionate.
It would be unreasonable to have to search for the document.
The document is no longer in the disclosing party’s control.
The disclosing party has a right / duty withhold inspection (eg it is privileged).
It would be unreasonable to have to search for the document.
Correct. This is relevant to whether the document should be disclosed in the first place, but is not listed as an exception to the right to inspect (CPR 31.3).
A company is in involved in litigation and has been obliged to disclose management accounts. Within the accounts are figures relating to directors’ salaries which are not relevant to the dispute and which are confidential. Which of the following is correct in relation to inspection and redaction of the accounts?
Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive.
Inspection of the accounts must be permitted. The confidential figures can be redacted because they are commercially sensitive.
Inspection of the accounts need not be permitted. The issue of redaction does not arise.
Inspection of the accounts need not be permitted because redaction is not practically possible.
Inspection of the accounts must be permitted. The commercially sensitive figures can be redacted because they are privileged.
Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive.
Correct. You have correctly understood that redaction of commercially sensitive parts of a document is only permitted if those parts are irrelevant or privileged.
The maxim ‘once privileged, always privileged’ encapsulates which legal principle in relation to privilege?
If privilege is established in relation to one type of document (for example, letters from a solicitor to a client) then it is established in relation to all documents in the same category (ie all letters from the solicitor to the client).
If a document is privileged in relation to disclosure, it will be privileged in relation to inspection.
If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.
If a document is privileged, then that privilege cannot later cease / be lost as a result of actions of the disclosing party.
If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, if the two sets of proceedings concern substantially the same subject matter.
If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.
correct
You are a litigation solicitor at Price Prior. You are instructed by Janet McCormack in relation to a claim she has against Dockland Removals Limited (“Docklands”). Docklands’ solicitor phones you a day before his client’s defence is to be served and asks for an extension of time of 14 days to file and serve its defence. You take instructions from your client who agrees to the extra time. You then phone up Docklands’ solicitor to let them know that the extension of time has been agreed. You make a note on one sheet of paper of the three conversations a) with Docklands’ solicitor, b) with your client, Janet McCormack and c) with Docklands’ solicitor again. The case comes to the disclosure stage and an order for standard disclosure is made, and you conclude that the sheet of paper must be disclosed. Is the sheet or any part of it privileged from inspection?
The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged.
The sheet of paper is not privileged as the dominant purpose of the creation of the piece of paper is to record a note of a telephone conversation with the other side’s solicitor which is not privileged.
No part of the sheet of paper is privileged as its contents deal with the conduct of the case
The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged.
Correct
Correct. The record of the conversation between solicitor and client will be subject to litigation privilege and/or legal advice privilege. The rest of the sheet of paper is not privileged. The dominant purpose test is not really relevant here: we are not looking at a single communication created for several purposes, which is when the ‘dominant purpose’ test would be useful. Here, we have distinct communications, each with its own clear purpose, and they can effectively be dealt with separately. In practical terms, this means letting the other side see the sheet of paper, but with the record of the conversation between solicitor and client ‘redacted’ ie hidden. Redaction is explained in the element ‘Inspection’.
incorrect
The sheet of paper is not privileged as the dominant purpose of the creation of the piece of paper is to record a note of a telephone conversation with the other side’s solicitor which is not privileged.
Incorrect
Incorrect. The dominant purpose test is not really relevant here: we are not looking at a single communication created for several purposes, which is when the ‘dominant purpose’ test would be useful. Here, we have distinct communications, each with its own clear purpose, and they can effectively be dealt with separately. Revisit this element.
You are a solicitor at Price Prior and you act for Elizabeth Jones (‘EJ’). EJ has brought proceedings against Terry Val (‘TV’) for personal injury she sustained to her back as a result of a car crash she had with him in June of this year. You have drafted the Particulars of Claim and at paragraph 4 you state that Ms Jones has not sustained any previous injuries to her back prior to this accident. However, during your investigation of this matter, you come across a note from a doctor in Tanzania. The note shows that 12 months before the accident occurred, EJ sustained an injury to her back whilst climbing Mount Kilimanjaro. EJ had failed to report this to her British GP. The matter proceeds to disclosure and you include this note in the List of Documents and send the list for approval to your client (standard disclosure has been ordered). EJ telephones you the next day and says that under no circumstances should TV see this document. Which one of the following statements correctly describes the status of this document?
The doctor’s note needs to be disclosed, but inspection can be refused because legal advice privilege applies.
The doctor’s note must be disclosed and inspection permitted
The doctor’s note need not be disclosed, so the question of inspection does not arise.
The doctor’s note needs to be disclosed, but inspection can be refused because litigation privilege applies.
The doctor’s note must be disclosed and inspection permitted
Correct. The document is in the client’s control and is potentially adverse to the client, and therefore must be disclosed. No privilege applies - litigation was not reasonably in prospect at the time the note was written and neither does it meet the test for legal advice privilege (or any other privilege).
You are a trainee in the litigation department at Price Prior. You attended and took notes at the case management conference in High Court proceedings issued against your client, Robinson Asset Management Limited (“RAM”) by Lawton Holdings Plc (“LH”). The case management conference was attended by you, your supervising partner, a representative from your client, RAM, counsel for your client, and also by a representative of LH, a partner and an associate solicitor from its representing solicitors (a firm called Taylor Dockett LLP), and counsel. The partner from Taylor Dockett solicitors has contacted you to say that unfortunately owing to an IT problem, they have lost the notes they made of the meeting and they have requested a copy of your notes. You believe that even if the court orders standard disclosure you are not obliged to provide Taylor Dockett with a copy of your notes because they are covered by litigation privilege. Is this true or false?
False
True
False
Correct. Pursuant to the case of Parry v Newsgroup Newspapers, a solicitor’s attendance note of a conversation between parties (ie between the solicitors for each party normally), or what happens at court, is not privileged since, notwithstanding that the note is a communication, there is no confidentiality in notes of matters at which both sides are present. Therefore it is likely that you will have to provide a copy of your notes as part of the disclosure and inspection stage of proceedings.
Your opponent writes to you by a letter clearly marked ‘without prejudice save as to costs’. Can you show that document to the court?
Yes, but only on the question of costs.
Yes.
No.
It depends on the content of the letter
It depends on the content of the letter
Correct
Correct. If the letter is a genuine attempt at settlement, then it will be privileged, and can only be shown to the court when it comes to costs. If it is not a genuine attempt at settlement, then it is unlikely to be privileged at all. The fact that the document is labelled a particular way is not conclusive.
An order for specific disclosure is an order that a party must….
Search for documents and/or disclose specified documents.
Search for documents, disclose specified documents and/or allow inspection of specified documents.
Disclose specified documents.
Search for documents.
Search for documents and/or disclose specified documents.
Correct
Correct. (CPR 31.12(2))
incorrect
Search for documents, disclose specified documents and/or allow inspection of specified documents.
Incorrect. This is too broad. Revisit the opening pages of this element.
An order for specific disclosure can be made…
At any time after proceedings have been issued
At any time before proceedings have been issued.
At any time before or after proceedings have been issued.
At any time after a disclosure order has been made and the time for compliance with that order has passed.
At any time after proceedings have been issued
Correct
Correct! Well done. An order for specific disclosure (CPR 31.12) can be made at any time after proceedings have been issued. Before proceedings, pre-action disclosure (CPR 31.16) would instead be considered.
Which of the following IS NOT required before the court is able to make an order for pre-action disclosure?
The applicant is also likely to be a party to those proceedings
Disclosure of the documents is proportionate to the sums at stake in the proceedings.
The respondent is likely to be a party to subsequent proceedings
Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs
If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks
Disclosure of the documents is proportionate to the sums at stake in the proceedings.
Correct
Correct. This is not required before the court is able to make an order for pre-action disclosure. Although it is not a requirement, it would be a relevant consideration, although note also that the respondent can be compensated for costs of compliance by a suitable costs order (as explained in this element) and that proportionality is about more than just the sums in dispute (consider also the complexity of the dispute etc). All the other answers are required by the rules (CPR 31.16) before the court may make an order for pre-action disclosure. Note that even if all these factors are present, the court still has a discretion as to whether to order disclosure – it is not obliged to do so.
One of the prescribed conditions that must be satisfied before the court has a discretion to order non-party disclosure (CPR 31.17) is:
disclosure of the documents sought is necessary in order to save costs.
disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs.
disclosure of the documents is necessary to avoid proceedings, encourage settlement or allow the proceedings to be conducted more efficiently.
disclosure of the documents sought is necessary because the documents cannot be obtained from a party.
disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs.
Correct
Correct – well done! Looking at the other answers: whether the documents can be obtained from a party (rather than non-party) is a relevant consideration, but does not form part of any of the conditions that must be satisfied.
A Norwich Pharmacal order can only be sought against someone who:
is associated with the wrongdoer
has facilitated the wrongdoing
has committed a wrong
is more than a mere ‘witness’ or bystander
is more than a mere ‘witness’ or bystander
Correct
Correct.
In relation to both non-party disclosure (CPR 31.17), and also Norwich Pharmacal Orders, the likely costs order if the applicant succeeds in its application is…
That the applicant pays the respondent’s costs of the application.
That the respondent (the unsuccessful party) pays the applicant’s costs.
That the respondent pays the applicant’s costs of the application, but the applicant pays the respondent’s costs of giving disclosure.
That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.
That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.
Correct
Correct. Well done.
incorrect
That the applicant pays the respondent’s costs of the application.
Incorrect
Not quite! Revisit this element focusing on the pages dealing with costs.
A claimant in a construction dispute is pursuing a claim for £450,000 against a defendant contractor. The claim arose due to losses suffered when a building project was not completed on time. The case has been allocated to the multi-track and the judge has made a direction for standard disclosure by list of documents. One of the documents in the claimant’s file is a draft letter written at the time of the building project by the managing director of the claimant to the defendant. The draft letter states that the completion date for the building project could be pushed back indefinitely to allow the defendant to carry out a proper job. This letter was never sent and the managing director of the claimant wants to know whether she can prevent the other side from seeing it. Will the defendant be entitled to inspect the letter?
No, because it is a document which supports the defendant’s case but it is covered by litigation privilege.
No, because it is a draft document that was written before the dispute arose so it is not subject to standard disclosure. .
Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege.
No, because it is a document which supports the defendant’s case but it is covered by legal advice privilege.
Yes, because it is an open document between the two parties and so it is not covered by legal professional privilege.
Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege.
CORRECT: The letter appears to be adverse to the claimant’s case (and so supports the defendant’s case) as it suggests there is flexibility over the completion date so undermining an element of the original claim. As such it is subject to standard disclosure and does not fall under either litigation privilege or legal advice privilege. This letter is open to inspection by the defendant.
incorrect
Yes, because it is an open document between the two parties and so it is not covered by legal professional privilege.
INCORRECT: Please review your materials on disclosure and inspection. You must ensure that you know and understand the relevant legal principles relating to privilege as derived from the leading case law as well as the applicable court rules. As a draft letter it would not be considered an ‘open’ document under the case of Parry v News Group Ltd [1990].
A witness statement provided by the claimant includes a reference to a letter setting out Counsel’s advice to the claimant. Will the defendant be able to inspect the letter?
Yes, as a party may inspect a document that is referred to in a witness statement.
No because it is a draft document that was written before the dispute arose so it is not subject to standard disclosure.
No, as only the claimant has the right to decide whether or not to waive privilege over this document.
Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.
No, as Counsel’s advice is covered by litigation privilege.
Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.
Correct. A party can inspect a document referred to in a witness statement (CPR 31.14). This is subject to the usual rules on privilege (which prevent a right to inspect), but privilege may have been waived depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.
incorrect
Yes, as a party may inspect a document that is referred to in a witness statement.
INCORRECT: It is true that as a general rule, a party may inspect a document that is referred to in a witness statement (CPR 31.14). However, that is subject to the usual rules on privilege and waiver of privilege. You would need to know more about the circumstances before reaching this level of certainty. Please revisit the element dealing with inspection.
A claimant is preparing for trial when the existence of a document that should have been disclosed to the defendant comes to light for the first time. At the time of disclosure, the claimant had carried out a reasonable search and properly carried out its disclosure obligations, but this document had not been revealed and therefore had not been disclosed.
What should the claimant do?
Apply to the court for permission to disclose the document (late).
Present the case to the court at trial using the document but making clear that it has not previously been disclosed.
Tell the court about the document.
Present the case to the court at trial without referring to the document.
Disclose the document to the defendant.
Disclose the document to the defendant.
CORRECT: The duty of disclosure continues during proceedings and the duty is to disclose the document to every other party (CPR 31.11). Simply not referring to the document at trial is not an option – it could be that the document is one that is helpful to the other parties, so this would be unfair. There is no need to apply to court to disclose the document. However, if the claimant wants to rely on the document, the claimant may need to apply to court for permission to do so (CPR 31.21) as a party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
incorrect
Apply to the court for permission to disclose the document (late).
INCORRECT: Please review your materials on disclosure, in particular, the continuing duty of disclosure (CPR 31.11). See the element ‘Sources and types of disclosure obligation’.
A claimant is pursuing an action for negligence against their solicitors in the High Court. The claim has been allocated to the multi-track and the court has ordered standard disclosure. One document being considered for disclosure is an email from the managing director at the claimant to the other members of the board of directors. The first 5 paragraphs report that month’s profit figures for the claimant’s business - the managing director has sent such monthly reports for many years. The claimant’s profitability is an issue in dispute in the proceedings. The remainder of the email reports back from a recent meeting with solicitors and sets out the contents of the advice that was given by the solicitors to the claimant at that meeting. Which of the statements below is the most accurate as to the claimant’s disclosure obligations?
The claimant will not be required to disclose the document as it does not meet the test for standard disclosure.
The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged.
The claimant will be required to disclose the document and make it available for the defendant to inspect unredacted.
The claimant will be required to disclose the document and it cannot be withheld from inspection or redacted because the claimant has waived privilege over the document.
The claimant will be required to disclose the document but can withhold inspection of the document on the grounds of legal professional privilege.
The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged.
CORRECT: This document satisfies the test for standard disclosure. The document as a whole will be available for inspection. However, the parts that repeat the legal advice will be redacted as it will be subject to legal advice privilege – it is a confidential communication between a lawyer and a client where the client is repeating legal advice given to them to the rest of the directors on the board. Following the principles in the “Good Luck” case, the client effectively acts as the lawyer’s agent when he repeats the advice to the rest of the board and therefore this falls within the definition of legal advice privilege.
A claimant driver is bringing proceedings against a defendant driver following a road traffic accident. The defendant has admitted liability and the claim is proceeding in relation to quantum only. The accident was captured on video by another driver who provided a copy of the video to the claimant, but the claimant deleted this by error before the proceedings started and does not have the contact details of the party that originally captured it. The court has ordered standard disclosure.
Which of the following best explains why the claimant is not obliged to disclose this video to the defendant?
The video is no longer in the claimant’s control.
It is not something the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case.
The video was created by a third party.
The identity of the ‘author’ of the video (the person that captured it) is unknown.
The disclosure obligation does not extend to videos.
It is not something the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case.
Correct. The obligation to give standard disclosure extends to videos – these are ‘documents’ (CPR 31.4). If a document is or was in the claimant’s control, it does not matter that it was created by a third party or that the author is unknown. The disclosure obligation extends to documents which are no longer in the claimant’s control. However, in this case liability has been admitted therefore it does not appear that this document is something which the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case which is now proceeding only in relation to quantum.
incorrect
The video is no longer in the claimant’s control.
Incorrect. The disclosure obligation extends to documents which are no longer in the claimant’s control. Revisit the element relating to standard disclosure.
Question 1
A claimant has commenced proceedings seeking in the region of £200,000 in relation to
personal injuries. A defence has been filed defending the claim in full. It is clear that the
claimant will be awarded at least £50,000 in relation to the injuries at trial, but the prospects
of recovering more than this are unclear. The claimant needs to make adaptations to their
house to cope with their injuries, but does not have the money to do so.
Does an application for an interim payment by the claimant have good prospects of
success?
A. No, because the defendant has not admitted liability.
B. Yes, because the claimant does not have any money to make the necessary
adaptations.
C. No, because the claimant has not obtained judgment against the defendant.
D. Yes, because if the claim went to trial the claimant would obtain judgment for a
substantial amount of money.
E. No, because the prospects of recovering the majority of the claim are uncertain.
D — substantial amount of money
Test for interim payment in CPR
When does exchange of witness statements usually take place?
Immediately after the defendant has filed its defence.
Immediately after allocation and case management.
Immediately after exchange of expert evidence.
Immediately after disclosure and inspection.
Immediately after the parties have filed directions questionnaires.
Immediately after disclosure and inspection.
Correct
The court will usually give directions for the exchange of witness statements at the allocation and case management stage and therefore exchange will not take place beforehand e.g. after the defendant has filed its defence or the parties have filed directions questionnaires. Exchange of witness statements is generally the step in the action that follows disclosure and inspection. This is because it is useful to review all disclosure documents prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.
The claimant calls a witness to give evidence at trial. How will the witness statement be used by the claimant at trial?
For re-examination by the defendant
As evidence in chief
For cross-examination
As written only evidence
For oral examination by the claimant
As evidence in chief
correct
Any fact which needs to be proved by evidence of witnesses at trial will be by oral evidence (CPR 32.2(1)(a)). However, a witness statement usually stands as evidence in chief at the trial (CPR 32.5(2)) so that in this scenario the claimant would not have to take oral evidence from the witness. The witness is then cross-examined by the other party, here the defendant, and re-examined by the claimant.
Which of the following does the court have no power to control (in relation to witness statements)?
None of the other answers is correct – the court has the power to control all of those.
The number of witness statements.
The length of witness statements
The issues to be covered in witness statements.
None of the other answers is correct – the court has the power to control all of those.
Correct. The court can control the issues to be covered in witness statements, together with their number and length.
In what way is witness evidence for an interim hearing different to that for a trial?
A witness statement for an interim hearing requires different wording for the statement of truth.
A witness statement for an interim hearing does not necessarily need to be by an individual – it can be by a company.
A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application.
The written evidence for an interim hearing should be contained within an application notice or a statement of case.
A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application.
This is correct. In relation to the other answers: - There is no difference in the statement of truth - The evidence can be within the application notice if it is short or it may already be contained in a statement of case, but it can also be in a witness statement instead. - A witness statement is always given by a specific individual, even if it is being given on behalf of a party which is a company or partnership.
Near the start of a witness statement, the witness will usually include a paragraph stating:
I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.
I believe that the facts stated in this witness statement are true. I believe that the facts stated occurred as stated, and where there is a range of opinions on matters described, I state the range of opinions to the best of my ability.
I believe that the facts stated in this witness statement are true. Where I have consulted others in relation to this witness statement, there are views are also stated to the best of my belief.
This witness statement is a true statement of the facts as I perceived them. Nothing in this witness statement is based on information provided to me by others.
I make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.
Correct. Well done!
What is the correct form of statement of truth for a witness statement given by the managing director of the Claimant in support of the Claimant’s claim?
I believe that the facts stated in this witness statement are true.
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant believes that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I believe that the facts stated in this statement of case are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Correct. Well done.
Which type of application needs evidence by way of affidavit rather than witness statement?
An application to vary a direction.
An application for a search order.
An application for an interim prohibitory injunction.
An application for summary judgment.
An application for a search order.
Correct
Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.
Which type of application needs evidence by way of affidavit rather than witness statement?
An application for relief from sanctions.
An application for a freezing order.
An application for an interim payment.
An application to strike out a statement of case.
An application for a freezing order.
Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.
An important difference between an affidavit and a witness statement is that…
The form of statement of truth on an affidavit is different.
An affidavit is directly transcribed from an oral account, but a witness statement is not always so transcribed.
Proceedings for contempt of court can be based on any error in an affidavit, whereas in the case of a witness statement, it is only contempt of court if a witness does not have an honest belief in what is stated.
An affidavit must be sworn before a person authorised to administer affidavits
An affidavit must be sworn before a person authorised to administer affidavits
Correct
Correct. Well done! In terms of the other answers: - there is no statement of truth in an affidavit. - what is said in relation to proceedings for contempt of court is roughly correct in relation to witness statements, but incorrect in relation to affidavits. - it is wrong to say that an affidavit is directly transcribed from an oral account.
incorrect
Proceedings for contempt of court can be based on any error in an affidavit, whereas in the case of a witness statement, it is only contempt of court if a witness does not have an honest belief in what is stated.
This is incorrect. Whilst what is said in relation to witness evidence is roughly correct, what is said in relation to affidavits is not. Revisit the introductory pages in this element.
An affidavit opens with the deponent stating, “I [name and other details]…
…confirm to the court my honest belief that…
…state on oath…
…hereby swear that…
…do solemnly declare…
…state on oath…
Correct. Well done!
All evidence that is relevant to the facts is admissible in civil proceedings. However, there are special procedural safeguards built into the rules and in the Civil Evidence Act 1995 relating to the admissibility of which type of evidence?
Hearsay evidence
Opinion evidence
Expert evidence
Evidence which is privileged
Oral evidence
Hearsay evidence
Correct
Hearsay evidence is the correct answer. Hearsay evidence is considered less reliable than direct evidence and so there are procedural safeguards to ensure hearsay can be carefully scrutinised eg by requesting particulars of the hearsay or by challenging its weight (Civil Evidence Act 1995 and CPR 33).
Opinion evidence is not the correct answer; the special rules relating to opinion evidence are contained in the Civil Evidence Act 1972. The element on expert evidence contains more details.
Evidence which is privileged is not the correct answer; the special rules for privilege are contained in case law. The elements on disclosure and inspection contain more details.
Oral evidence is not the correct answer; there are not special ‘evidential’ rules, but procedural requirements regarding oral evidence of witnesses of fact (CPR 32) and requirements regarding oral evidence of experts (CPR 35).
Expert evidence is not the correct answer; there are not special ‘evidential’ rules, but procedural requirements regarding expert evidence (CPR 35).
A man is giving oral evidence at trial on behalf of the claimant. He states to the court: “during the meeting, I agreed with the defendant to a price of £100 per item”.
Is this hearsay evidence?
It is not hearsay. He is making a statement in court of facts that someone else witnessed.
It is hearsay because it is an oral statement.
It is not hearsay. He is making a statement in court of facts that he witnessed himself.
It is hearsay. It is being adduced in court to prove the truth of the matter stated.
It is hearsay. He is repeating a statement that someone else made out of court.
It is not hearsay. He is making a statement in court of facts that he witnessed himself.
This is the correct answer. John’s statement is not hearsay. He is making a statement in court of facts that he witnessed himself.
How does a party give notice to the other party of hearsay that appears in the witness statement of a witness giving oral evidence at trial?
Provide formal notice.
Telephone the other party.
Exchange witness statements
No notice is required.
Exchange witness statements and provide formal notice of the hearsay.
Exchange witness statements
The correct answer is exchange of witness statements. No ‘formal’ notice is required as notice is deemed on exchange. This means it is incorrect to say that it is necessary to exchange witness statements and provide formal notice of the hearsay, or to telephone the other party, or that no notice is required, or that formal notice is required.
incorrect
Provide formal notice.
It is incorrect to say that formal notice is required. Revisit the requirements for notices.
No notice is required.
It is incorrect to say that no notice is required. A step needs to be taken. Revisit the requirements for notices.
Exchange witness statements and provide formal notice of the hearsay.
It is incorrect to say that it is necessary to exchange witness statements and provide formal notice of the hearsay. Revisit the requirements for notices.
The parties in a breach of contract claim have both just received the final report from the single joint expert instructed to advise on the extent of losses suffered by the claimant as a result of the defendant’s breach. The claimant is unhappy with the expert’s conclusions and considers the approach taken to calculating those losses to be unclear and potentially incorrect.
Which of the following best describes what the claimant should do next to challenge the expert and the content of the report?
The claimant should make an application that the instructions to the expert are disclosed so that it can ensure that they contain nothing inaccurate and are not incomplete.
The claimant should make an application to court asking that the expert’s report be struck out with immediate effect.
The claimant should put written questions to the expert asking for clarification about the approach taken to the calculation of loss.
The claimant should wait until the final hearing of the dispute when it will be able to cross-examine the expert and challenge the approach taken to the calculation of loss.
The claimant should immediately instruct its own expert to advise on loss to allow for enough time for that evidence to be adduced at final hearing.
The claimant should put written questions to the expert asking for clarification about the approach taken to the calculation of loss.
CORRECT: On receiving the report from the single joint expert the claimant should put written questions to the expert (CPR 35.6). This will help it understand how the expert came to their conclusions. It is not appropriate for the report to be struck out as the court’s power relates to striking out a statement of case and not an expert’s report (CPR 3.4). The claimant may indeed want to cross-examine the expert at the final hearing but does not need to wait until then before taking pro-active steps. The claimant cannot rely on the evidence of a new expert without the court’s permission and it is premature to seek this (CPR 35.4). The claimant will have seen the instructions to the single joint expert (CPR 35.8).
A witness of fact is called to give evidence in the trial of a claim brought by a claimant property development company against a defendant accountancy firm for losses arising out of alleged negligent advice that was given by the defendant. The witness was the Financial Director of the claimant company at the time the alleged negligent advice was given. The witness’s statement includes the following sentence: ‘At the time the advice was given, the financial assessment provided by the defendant did not accurately reflect the claimant’s financial position’. Is this evidence likely to be admissible?
The sentence is likely to be admissible expert opinion evidence.
The sentence is likely to be inadmissible opinion evidence.
The sentence is likely to be admissible ‘perceived fact’ evidence.
The sentence is likely to be admissible evidence of fact.
The sentence is likely to be inadmissible privileged evidence.
The sentence is likely to be admissible evidence of fact.
CORRECT: The sentence is evidence of fact given by the witness who would have been involved in the events at the time and had the knowledge (as Financial Director) to state that the financial assessment was not accurate. The witness would no doubt go on to give detail of where and why elements of the advice given were inaccurate, which again would be matters of fact. As such, the sentence does not consist of an opinion whether admissible or inadmissible ie it is not based on the witness’s value judgement of the facts. The sentence does not contain any information which falls under any head of privilege (privileged information is, in any event, admissible, if the party/ies entitled to claim privilege wish to waive this).
incorrect
The sentence is likely to be inadmissible opinion evidence.
Incorrect
INCORRECT: Please review your materials on the different categories of admissible and inadmissible evidence. It is important that you are able to identify and distinguish between the different types of opinion and other evidence and accurately conclude which statements are, and are not, admissible. The sentence does not contain an opinion that would be inadmissible. It does not contain any comment on (for example) whether the defendant fell below the standard of care expected of it so is not expressing an opinion on whether or not the defendant was negligent. Additionally, it is not based on the witness’s value judgement of the facts in their knowledge.
The sentence is likely to be admissible ‘perceived fact’ evidence.
INCORRECT: Please review your materials on the different categories of admissible and inadmissible evidence. It is important that you are able to identify and distinguish between the different types of opinion and other evidence and accurately conclude which statements are, and are not, admissible. The sentence does not convey matters that are part of the ‘human experience’.
A claim has been issued for non-payment of goods delivered by the claimant to the defendant on 8th February. The parties’ written contract stipulates delivery on 1st February. The claimant’s Finance Director made an oral variation to the contract for delivery to be on 8th February. The draft witness statement of the Managing Director (not the Finance Director) includes the paragraph: ‘The Finance Director told me that she spoke to the defendant to change the date of delivery of the goods from 1st February to 8th February and the defendant agreed to the change’.
Which of the following statements best describes how the claimant should deal with / improve upon this evidence?
Remove the paragraph from the witness statement.
Retain the paragraph from the witness statement and obtain a witness statement from the Finance Director.
Remove the paragraph from the witness statement, place it in a hearsay notice and serve the hearsay notice on the defendant.
Retain the paragraph in the witness statement.
Retain the paragraph in the witness statement and serve a notice that the claimant intends to rely on the evidence at trial.
Retain the paragraph from the witness statement and obtain a witness statement from the Finance Director.
Correct
CORRECT: The paragraph in the witness statement contains hearsay evidence which is an oral or written statement, made out of court, adduced in court to prove the truth of the matter stated. (Hearsay evidence can sometimes be understood as ‘back-up’ evidence. In other words, the witness has a view about the case and someone ‘says’ something, repeated in the witness statement which ‘backs up’ the witness’s point of view). Hearsay evidence is admissible in civil proceedings by s.1 Civil Evidence Act 1995 (CEA 1995) and so there is no need to remove it. However, if a witness statement can be obtained from the Finance Director, then this is much more persuasive and valuable. It makes the inclusion of the paragraph in the witness statement of the Managing Director much less necessary, but there may still be some benefit in retaining it.
Note that even if it was retained, there would be no need to serve a separate notice that the claimant intends to rely on the evidence at trial.
In a breach of contract claim, the parties are due to exchange witness statements by 27 March. On 20 March, the Claimant receives notification that, due to the unavailability of a witness, it will not be possible to contact the witness and finalise her statement until 2 April. The next direction after exchange of witness statements is for experts to report, in late June. Which of the following statements best describes what Claimant should do?
Notify the other side that the witness statements will be ready for exchange on 2 April and inform them that the date for exchange of witness statements will need to be delayed until then.
Notify the court that the witness statements will be ready for exchange on 2 April and inform them that the date for exchange of witness statements will need to be delayed until then.
Ask the Defendant for an extension of time for exchange of witness statements.
Serve the witness statements in their current form.
Make an immediate application to extend the time for service of the witness statements until 2 April.
Ask the Defendant for an extension of time for exchange of witness statements.
Correct. It is important not to miss the deadline because if a witness statement for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10) – ‘notifying’ the court or the opponent is not adequate to avoid the sanction. An application to the court should therefore be made before any deadline expires. However, the other side has the power to grant the extension sought, and this would avoid the need for a court application, so this should be explored first. Witness statements should not be served in draft form, as the draft could give away something prejudicial.
incorrect
Notify the other side that the witness statements will be ready for exchange on 2 April and inform them that the date for exchange of witness statements will need to be delayed until then.
It is important not to miss the deadline because if a witness statement for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10) – ‘notifying’ the opponent is not adequate to avoid the sanction. Revisit the element on witness statements and consider also what you have already learned about the overriding objective, case management powers, extension of time and interim applications.
Make an immediate application to extend the time for service of the witness statements until 2 April.
It is important not to miss the deadline because if a witness statement for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10) – ‘notifying’ the court or the opponent is not adequate to avoid the sanction. An application to the court should therefore be made before any deadline expires. However, it would be premature to make it now. Revisit the element on witness statements and consider also what you have already learned about the overriding objective, case management powers, extension of time and interim applications.
Notify the court that the witness statements will be ready for exchange on 2 April and inform them that the date for exchange of witness statements will need to be delayed until then.
It is important not to miss the deadline because if a witness statement for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10) – ‘notifying’ the court is not adequate to avoid the sanction. Revisit the element on witness statements and consider also what you have already learned about the overriding objective, case management powers, extension of time and interim applications.
The managing director of a software company is providing evidence in support of an interim application for a search order. In what manner will that evidence need to be ‘signed off’?
With a jurat on the part of the managing director personally, sworn before someone who is authorised to administer affidavits.
With a jurat by the managing director on behalf of the company, sworn before someone who is authorised to administer affidavits.
With a statement of truth by the company.
With a statement of truth on the part of the managing director personally.
With a statement of truth by the managing director on behalf of the company.
With a jurat on the part of the managing director personally, sworn before someone who is authorised to administer affidavits.
Correct, well done! An affidavit is needed because the application is for a search order. An affidavit is signed off with a jurat rather than a statement of truth, and must be sworn before someone who is authorised to administer affidavits. An affidavit needs to be signed by someone personally – it is not given by a company or partnership (this is also true of witness statements).
In a road traffic accident, a driver suffers several injuries including brain damage, a punctured lung and a broken leg. What expert evidence is admissible in the personal injury case at court?
The orthopaedic surgeon giving an opinion on the driver’s broken leg.
The orthopaedic surgeon conveying perceived facts.
The orthopaedic surgeon giving an opinion on the relevant law.
The orthopaedic surgeon giving an opinion on the impact of the brain damage on the driver.
The orthopaedic surgeon giving an opinion on the implications of the driver’s punctured lung.
The orthopaedic surgeon giving an opinion on the driver’s broken leg.
This is the correct answer. The general rule is that opinions are not admissible. On exception is expert evidence. An expert must give an opinion on a matter upon which the expert is qualified. An orthopaedic surgeon deals with the skeleton and joints and so is an expert in giving an opinion on the driver’s broken leg. An orthopaedic surgeon is not an expert in a punctured lung or brain damage; these injuries would be outside the orthopaedic surgeon’s expertise. The judge is the expert in law. Another exception to the general rule is perceived facts. The orthopaedic surgeon is not a witness conveying relevant facts personally perceived by the expert.
The defendant’s solicitor asks the court for permission to use an actuarial expert to assist with calculating damages. Which of the following is correct?
If the defendant’s solicitors do not exchange the expert’s report by the date set out in the court’s directions, the evidence cannot be used without the court’s permission.
The actuarial should try to maximise the defendant’s claim for damages.
The defendant’s solicitors must provide the name of the actuarial expert in the directions questionnaire.
The court’s permission is needed to instruct the actuarial expert.
The court’s permission to call an expert is usually sought by the parties at the pre-action stage.
If the defendant’s solicitors do not exchange the expert’s report by the date set out in the court’s directions, the evidence cannot be used without the court’s permission.
This is the correct answer. An expert’s report must be exchanged by the date set out in the court’s directions otherwise the evidence cannot be used without the court’s permission (CPR 35.13). Permission (CPR 35.4) is to call an expert or to rely on the written expert’s report at trial; permission is not needed to ‘instruct’ the expert. Permission is usually sought in the directions questionnaire and will be dealt with in the directions issued at the case management stage. The name of the actuarial expert does not need to be provided in the directions questionnaire unless it is practicable to do so. The duty of the expert will be to the court and this overrides any obligation to the defendant’s solicitor to maximise the claim.
A single joint expert has been instructed following a direction being made by the court in relation to this expert evidence. What should the single joint expert have received in addition to the instructions to provide a report?
An order confirming a direction for a discussion of experts.
An order confirming the date that the report of the expert shall be filed at court sent by the court.
An order confirming the date that the report of the expert shall be filed at court from the defendant.
An order confirming the date that the report of the expert shall be filed at court from the claimant.
An order to prepare a statement of the issues on which the experts agree and which they disagree.
An order confirming the date that the report of the expert shall be filed at court from the claimant.
This is the correct answer. Where there is an order requiring an act by an expert, the party instructing the expert must serve the order on the expert (35 PD 8). In the case of single joint experts, this is the claimant (not the defendant or the court). A discussion of experts and a statement of issues would not be appropriate for a single joint expert, but are tools used to reduce the issues where each party instructs their own expert.
where is this in notes?
incorrect
An order confirming a direction for a discussion of experts.
This is an incorrect answer. Revisit the ‘questions by experts to the court’ part of the element which also deals with what experts can expect to receive and who from.
An order confirming the date that the report of the expert shall be filed at court sent by the court.
This is an incorrect answer. Revisit the ‘questions by experts to the court’ part of the element which also deals with what experts can expect to receive and who from.
An order to prepare a statement of the issues on which the experts agree and which they disagree.
This is an incorrect answer. Revisit the ‘questions by experts to the court’ part of the element which also deals with what experts can expect to receive and who from.
The claimant’s solicitor has served extensive questions on the defendant’s expert within 28 days of receiving the expert’s report. The defendant’s expert believes that it would take a disproportionate amount of time to answer the questions and that the questions are simply cross-examination. What should the defendant’s expert do next to address its concerns?
The defendant’s expert should file a written request with the court for directions.
The defendant’s expert should answer the questions as soon as possible.
The defendant’s expert should ignore the request to answer questions.
The defendant’s expert should only answer a proportionate number of the questions.
The defendant’s expert should write to the claimant’s solicitor refusing to answer the questions.
The defendant’s expert should file a written request with the court for directions.
This is the best answer. The rules allow an expert to submit written requests for directions to the court to help them carry out their task (CPR 35.14). This would be better than refusing to answer the questions, answering a number of questions or ignoring the request because the rules do allow the claimant to ask the expert questions within 28 days of the expert’s report (CPR 35.6). The expert’s answers become part of the report and so if the expert objects to the questions it is important that the issue is dealt with by the court rather than simply answering the questions.
Under Part 36, in the absence of agreement in writing, how long does a defendant have to pay the offered sum of money to claimant if it accepts the offer?
14 days
28 days
7 days
Unless the offer states the period, there has been no effective offer.
21 days
14 days
Correct
Correct. (CPR 36.14).
Manchester Hospitals NHS Trust has recently instructed you in respect of proceedings, issued against it by Herbert, for damages for clinical negligence. On Friday last week, Manchester Hospitals NHS Trust served its defence within the correct time limits. The claim is likely to be allocated to the multi-track. Manchester Hospitals NHS Trust wants to make a Part 36 offer but wants it to be a time limited offer ie only open for acceptance for a specified period of time. It asks you for advice on whether it is possible to make a time limited Part 36 offer.
What ONE of the following is the BEST advice in these specific circumstances?
Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period.
No it is not possible to make a time limited offer. Once a Part 36 offer is made it cannot be withdrawn under any circumstances.
No it is not possible to make a time limited offer. You would have to withdraw the offer by serving notice of withdrawal.
Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms. There can be a term which time limits the Part 36 offer. This time limit can be of any period including less than the relevant period.
Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period.
Correct. (CPR 36.9(4)(b)). Practically, this means that the Part 36 offer will state that it will be withdrawn by a set date or time, after the expiry of the relevant period, if it has not been accepted.
Clinton Hart is bringing a claim for personal injury against Simon Malik. The claim arises out of a road traffic accident.
The case is issued in the High Court. Simon has admitted liability; the only matter in issue is the amount of damages. The case has been provisionally allocated to the multi-track and Directions Questionnaires are due to be filed next week. Clinton alleges that he has suffered permanent injuries, he cannot work, has mobility issues and needs a significant amount of care. Clinton’s medical evidence supports this and on full valuation the claim would be worth in the region of £1 million. Simon has made a Part 36 offer of £750,000. The relevant period is 21 days. This offer reflects Simon’s solicitor’s valuation of the claim as they feel that the care element of the claim is overvalued. The Part 36 offer was made 10 days ago and has not yet been accepted. Today, instructing solicitors have received an e-mail with an attachment. The attachment is a recording of Clinton playing football for his local football team during which he scores a goal with an overhead kick. There is no evidence of any injury. The sender is willing to provide a witness statement in support.
Advise the solicitors for Simon on the BEST course of action to adopt in relation to his Part 36 offer in light of the new evidence from the following options:
Simon should do nothing.
Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice.
All Simon needs to do is serve a notice of withdrawal and it will take effect immediately.
As the relevant period has not expired, Simon’s Part 36 offer can only be withdrawn with the permission of the court. Therefore, Simon should apply immediately to the court for permission to withdraw the offer.
Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice.
Correct. Simon’s Part 36 offer of £750,000 is now very likely to be too high as the injury is worth less than the Part 36 offer (in the light of the evidence in the recording and Clinton playing football for his local football team during which he scores a goal with an overhead kick). As soon as Simon serves the recording evidence (or realises that Simon has it) Clinton may very well accept the offer. In order to prevent acceptance Simon needs IMMEDIATELY to serve a notice to withdraw the offer. Clinton then has a choice whether to accept the offer or allow the withdrawal to take effect. If Clinton does not accept the offer at that stage the offer will be withdrawn at the expiry of the relevant period. If Clinton does accept the Part 36 offer then Simon will need to apply to the court to withdraw the offer within 7 days of Clinton’s notice of acceptance (CPR 36.10).
Landsdown Limited (‘Landsdown’) is the claimant in a civil dispute. Gothic Limited (‘Gothic’) is the defendant. A trial is due to take place in 3 months’ time. The claim is for £500,000. Gothic has made an offer to Landsdown to settle the claim for £350,000. The offer was made pursuant to Part 36 of the CPR. Landsdown has rejected the offer.
The claim proceeds to trial. At trial, Landsdown is awarded £380,000. What is the impact of Gothic’s offer on costs?
No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2).
Landsdown will get its damages and a split costs order. Gothic will have to pay Landsdown’s costs until the relevant period expired. Thereafter, Landsdown will have to pay Gothic’s costs plus interest.
Gothic will most likely get its costs paid by Landsdown pursuant to the normal rules on costs (CPR 44.2).
Landsdown will get its damages and a split costs order. Landsdown will have to pay Gothic’s costs until the relevant period expired. Thereafter, Gothic will have to pay Landsdown’s costs plus interest.
No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2).
Correct
Correct. The claimant (Landsdown) has won. Importantly, Landsdown has obtained more than the offer of £350,000 (it has been awarded £380,000). In other words it obtained a judgment ‘more advantageous’ than the defendant’s (Gothic’s) Part 36 offer. A split costs order would only be appropriate if Landsdown had won, but failed to obtain a more advantageous judgment than Gothic’s Part 36 offer eg if Landsdown had been awarded £340,000.
Where judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer, which of the following IS NOT one of the stipulated consequences (the consequences apply unless the court considers it unjust).
C is awarded interest on the award at a rate not exceeding 10% above base rate for some or all of the period from the expiry of the relevant period.
C is awarded interest on costs from the end of the relevant period at a rate not exceeding 10% above base rate.
All the other answers are consequences.
C is awarded an additional amount based on a percentage of the award.
C is awarded costs from the end of the relevant period to be assessed on the indemnity basis (in contrast to the usual basis - the standard basis).
All the other answers are consequences.
Correct. All the other answers are consequences (CPR 36.17).
C has brought a breach of contract claim against D seeking damages of £140,000. 4 months before trial, D makes a Part 36 offer of £110,000. C does not accept this. At trial, C is awarded damages of £100,000. What is the likely impact of the Part 36 offer, if any?
C will get its damages and a split costs order. D will have to pay C’s costs until the expiry of the relevant period. Thereafter, C will have to pay D’s costs plus interest.
C will get its damages and a split costs order. C will have to pay D’s costs until the relevant period expires. Thereafter, D will have to pay C’s costs plus interest.
D will most likely get its costs paid by C pursuant to the normal rules on costs (CPR 44.2).
No effect. C will get its damages and it will also most likely get its costs paid by D pursuant to the normal rules on costs (CPR 44.2).
C will get its damages and a split costs order. D will have to pay C’s costs until the expiry of the relevant period. Thereafter, C will have to pay D’s costs plus interest.
Correct. A split costs order is appropriate because C has won, but failed to obtain a more advantageous judgment than D’s Part 36 offer. The costs are therefore ‘split’ as set out in this answer, and D is also awarded interest on those costs. Note, this is the result, unless the court considers it unjust.
Which of the following necessarily results in a binding decision?
Expert appraisal
Mediation
Negotiation
Expert determination
Expert determination
Correct
Well done. In expert determination, an independent expert reaches a binding decision on the matter referred to him. Expert appraisal does not result in a binding decision – the expert provides a non-binding assessment which might influence future settlement discussions. Neither negotiation nor mediation will result in binding outcomes unless they are successful, and even then the outcomes should not be considered ‘decisions’, because they are outcomes mutually agreed by the parties, not decided by a third party.
Which of the following is not / very unlikely to be an advantage of ADR?
It allows a greater range of outcomes than court proceedings.
It sets a binding precedent.
It is more private
It saves money for the parties
It sets a binding precedent.
Correct
Well done. A resolution reached by ADR will rarely, if ever, amount to a binding precedent. The other answers are often advantages of ADR, although whether they are advantages in any particular cases depends on the facts of that case.
When can parties agree to arbitrate?
When entering into a contract, before any dispute has arisen.
After a dispute has arisen.
After a dispute has arisen or when entering into a contract before any dispute has arisen.
After a dispute has arisen or when entering into a contract before any dispute has arisen.
Correct
Well done. Parties might include an arbitration clause when negotiating a contract, which provides for any dispute in relation to that contract to be referred to arbitration. However, even if the parties do not include such a clause, they can refer a dispute to arbitration once that dispute arises, if they both agree to this.
How likely is it that a case is suitable for some sort of ADR?
Almost certain
Possible
Certain
Unlikely
Rare
Almost certain
Correct
Well done. The vast majority of cases are suitable for ADR, if ADR is appropriately chosen and timed.
Which of the following best summarises the court’s powers in relation to ADR?
The court can provide information about ADR and encourage the parties to consider ADR.
The court can provide information about ADR.
The court can encourage the parties to consider ADR and compel a party to engage in ADR.
The court can provide information about ADR, encourage the parties to consider ADR and compel a party to engage in ADR.
The court can provide information about ADR and encourage the parties to consider ADR.
Well done. The court cannot compel party to engage in ADR, although it can impose sanctions on a party that unreasonably refuses to engage in ADR.
Which of the following IS NOT part of the guidance given by the court as to how the court will approach the question of costs where a successful party has refused to engage in ADR?
The burden of proof will be on the unsuccessful party to show the court why it should depart from the general rule on costs to deprive the successful party of some or all of its costs on the grounds that it refused to agree to ADR.
A refusal is more likely to be reasonable if ADR had little prospects of success.
A relevant consideration is the extent to which settlement methods other than the one ultimately refused have been attempted.
The starting point is that a party who has refused to engage in ADR should pay the costs from the refusal onwards, unless factors point to a different order.
The starting point is that a party who has refused to engage in ADR should pay the costs from the refusal onwards, unless factors point to a different order.
Correct
Well done. This statement is incorrect. The contrary is the case – it is for the unsuccessful party to show the court why it should depart from the general rule that the unsuccessful party should pay the successful party’s costs. The extent to which other settlement methods have been attempted, and the prospects of ADR succeeding, are also both relevant considerations.
Which of the following IS BEYOND the court’s powers in relation to ADR?
To order a stay of proceedings in order that the parties can explore ADR.
To order a party to serve a witness statement if it refuses an opponent’s ADR proposal.
To penalise a party in costs for refusing to engage in ADR.
To order a party to attend (but not necessarily to make an offer at) a mediation.
To order a party to attend (but not necessarily to make an offer at) a mediation.
Correct
Well done. This is beyond the court’s powers.
True or false: a party’s failure to propose ADR at any stage of a claim is likely to be treated by the court in the same way as a refusal to engage in ADR proposed by the other party.
True
False
False
Correct
Well done. Failing to propose ADR is generally less likely to be considered conduct worthy of criticism than refusing to engage in ADR, although either can attract criticism and sanctions.
Who can discontinue proceedings?
Either the claimant or the defendant.
The defendant
The claimant
The claimant
Correct
Correct. Discontinuance is available to a claimant, and only a claimant.
A claimant discontinues proceedings against Defendant A but not against Defendant B. What are the costs consequences (unless the court orders otherwise)?
The court will determine liability for costs upon the discontinuance.
The court will determine liability for costs upon the determination of the claim against Defendant B.
The claimant will be required to pay the costs of Defendant A up to discontinuance, but not those of Defendant B.
The claimant will be required to pay the costs of Defendant A and Defendant B up to discontinuance.
The claimant will be required to pay the costs of Defendant A up to discontinuance, but not those of Defendant B.
Correct. The claimant is liable for costs relating only to the part of the proceedings which they are discontinuing (CPR 38.6).
Discontinuance is usually achieved by….
Filing a consent order.
Filing a notice at court.
Filing a notice at court and serving it on all other parties.
Making an application to court.
Filing a notice at court and serving it on all other parties.
Correct
When does discontinuance take effect?
Upon service of the notice of discontinuance
Upon filing of the notice of discontinuance.
Upon the court order discontinuing the claim.
Upon payment by the claimant of the defendant’s costs.
Upon service of the notice of discontinuance
Correct. (CPR 38.5(1)).
A claimant is bringing a civil action against a defendant for £400,000. After exchange of witness evidence, the defendant serves on the claimant a Part 36 offer to settle in the sum of £300,000. The claimant rejects this offer and the case proceeds to trial where the claimant is awarded £300,000 (all figures are inclusive of interest). Which ONE of the following statements best describes the likely costs consequences?
There are no part 36 costs consequences, because the claimant rejected the defendant’s offer within the relevant period.
The claimant will have to pay the defendant’s costs of the proceedings pursuant to the general rule because the claimant has refused a reasonable offer.
The defendant will pay the claimant’s costs before the expiry of the relevant period, and the claimant will pay the defendant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant failed to beat the defendant’s offer.
The claimant will pay the defendant’s costs before the expiry of the relevant period, and the defendant will pay the claimant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant beat the defendant’s offer.
The claimant will get its costs pursuant to the general rule because it has been successful at trial.
The defendant will pay the claimant’s costs before the expiry of the relevant period, and the claimant will pay the defendant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant failed to beat the defendant’s offer.
Correct
Correct - This is a Defendant’s part 36 offer. The claimant has failed to obtain judgment more advantageous than the offer (CPR 36.17(1)(a)) as it has obtained a judgment the same as the offer. This triggers Part 36 and it is likely that a split costs order (CPR 36.17(3)) may apply where the claimant will get its costs from the defendant up to the date on which the relevant period expires and the defendant will get its costs from the claimant thereafter. Note, however, that this outcome is not guaranteed – the court will not impose these Part 36 consequences if it considers them to be unjust.
incorrect
The claimant will get its costs pursuant to the general rule because it has been successful at trial.
Incorrect. Please look at your materials on settlement/Part 36. In particular, the materials which relate to defendant offers and penalties imposed on claimants for refusal to accept what later transpires to be a reasonable offer (CPR 36.17(1)(a) and CPR 36.17(3)).
You represent a claimant company which is bringing an action alleging negligence against its former surveyors, the defendant. The defendant makes an offer pursuant to Part 36 in an attempt to settle the action before the issue of proceedings. The next day, the claimant issues proceedings, but shortly afterwards decides it should accept the defendant’s offer.
Which one of the following is the best advice to the claimant should it wish to accept the defendant’s offer?
The claimant can accept the offer by filing a written notice of acceptance at court.
The claimant may accept the offer within the relevant period and obtain damages and costs to the date the notice of acceptance is served.
The claimant may accept the offer within the relevant period, but as the offer was made before proceedings were issued, Part 36 will not apply.
The claimant must accept the offer within the relevant period or else the offer will automatically be withdrawn at the end of that relevant period.
Provided that the claimant accepts the offer within the relevant period, it will be entitled to damages and all of its costs up to the expiry of the relevant period.
The claimant may accept the offer within the relevant period and obtain damages and costs to the date the notice of acceptance is served.
Correct. A Part 36 offer may be made at any time, including before the commencement of proceedings (CPR 36.7). Pre-issue Part 36 offers have the usual Part 36 consequences, including recoverable pre-action costs, upon acceptance after issue of proceedings (or upon judgment being given).
incorrect
Provided that the claimant accepts the offer within the relevant period, it will be entitled to damages and all of its costs up to the expiry of the relevant period.
Incorrect. Please look again at your materials dealing with settlement/Part 36, in particular the materials which confirm the period within which the claimant will be entitled to claim its costs (CPR 36.13).
Your client, a supermarket, is about to enter into a contract with a new supplier of almonds and other nuts based in the USA. The supplier has proposed including an arbitration clause in the contract to resolve any disputes that may arise in future. The arbitration will have its legal seat in England. Your client is more familiar with litigation in the English courts and has generally been happy for its previous contractual disputes to be adjudicated with legal expertise to provide correct legal solutions. It has asked for your advice on arbitration. Which one of the following potential benefits of arbitration is likely to be most attractive to your client in its dealings with this supplier?
Arbitration allows your client to have some input into the process
Arbitration allows for easier international enforcement than litigation in the English courts
Arbitration is likely to enable a legally correct solution to be achieved.
Arbitration is likely to be cheaper for your client than litigation in the English courts.
The arbitrator can be experienced in the area of food supply.
Arbitration allows for easier international enforcement than litigation in the English courts
Correct. It is often easier to enforce an arbitration agreement (the reason for this is that the vast majority of countries are signatories to the New York Convention which means arbitration awards can be enforced internationally, whereas court judgments are more difficult to enforce and usually depend on there being a specific agreement between the two countries). This is important to the client given the supplier is in another jurisdiction because any judgment/award needs to be enforceable. In relation to the other answers, arbitration is rarely cheaper than litigation if the parties follow a very long and complicated process and the client has not said it is concerned about costs. Whilst the arbitration process allows for some flexibility in the process (subject to the mandatory rules in the Arbitration Act 1996 which provides a framework where the seat of the arbitration is in England/Wales), this is not a benefit of arbitration that is likely to be ‘most attractive’ to the client on the facts. Whilst arbitrators can have more expertise if available in the particular field (and this is a major benefit of arbitration), in this case, it is not something the client has mentioned it is concerned about. In fact, the client has previously been happy with judicial adjudication in the courts. Finally, arbitration allows for a legally correct solution to be achieved if the parties agree this, but so do court proceedings. So again this is not a benefit of arbitration that is likely to be ‘most attractive’ to your client.
incorrect
Arbitration is likely to be cheaper for your client than litigation in the English courts.
Incorrect. Arbitration is rarely cheaper than litigation if the parties follow a very long and complicated process. The client has not said it is concerned about costs and it is familiar with (and therefore seems prepared to use and pay for) litigation. Look back over your notes on the characteristics of litigation and arbitration and reconsider the other options.
Your client is a producer of high-quality furniture. One of its long-standing suppliers provided it with sub-standard leather to cover its sofas. This resulted in the recall of the sofas and significant losses for your client. Your client has recently commenced court proceedings against the supplier to recover these losses. The supplier has proposed that the parties try to resolve the dispute by mediation and your client asks for your advice. Your client is not yet concerned about the increasing costs of the litigation as it has put aside a small fund to pay for it. The client believes it has a strong case so that any legally correct solution would be decided in its favour. It would like to continue to work with the supplier in future. Which of the following is most accurately describes the greatest benefit of mediation to your client?
Mediation is confidential.
Mediation will save your client costs.
Mediation is a less adversarial process than court proceedings so it will enable the parties to maintain their commercial relationship in future.
Mediation will shorten the time spent on the dispute because the mediator can make a decision which will bring the dispute to a conclusion.
Mediation is more likely to provide a commercial resolution.
Mediation is a less adversarial process than court proceedings so it will enable the parties to maintain their commercial relationship in future.
Correct. Mediation is less adversarial than court proceedings and so is a good choice if the parties wish to maintain their commercial relationship after the dispute has been resolved. In terms of the other answers, mediation will save costs if successful (although probably not otherwise), but this does not appear to be a key concern for your client. It will shorten the dispute if successful, but not because the mediator can make a decision – they cannot, they simply facilitate settlement. One of the benefits of mediation is that it is more likely to be a commercial resolution rather than a legally correct one, but this is not a clear benefit to our client who believes it has a strong case that will be decided in its favour. Mediation is indeed confidential, but your client has not identified this as a significant concern – perhaps the product recall has already publicised this issue so that this is no longer a critical concern
The Claimant issues proceedings against Company A and Company B for breach of contract. Company A and Company B instruct their own solicitors and serve separate defences. Company A and Company B had worked together in a joint venture partnership and initially appeared equally liable for the breach of contract. On receipt of Company B’s defence, it becomes clear to the Claimant that there was no joint venture agreement and on re-assessing the documentary evidence, the Claimant only has a contract with Company A. What is the best course of action for the Claimant to take?
Apply for summary judgment against Company A
Apply for a stay of proceedings
Discontinue the claim against Company B
Discontinue the claim against Company A and company B and issue new proceedings against Company A
Apply to strike out the particulars of claim against Company B
Discontinue the claim against Company B
Correct. The Claimant can discontinue its claim against Company B by filing a notice of discontinuance at court and serving a copy of it on every other party to the proceedings (CPR 38.3(1)). Where there is more than one defendant, the notice of discontinuance must specify against which Defendant(s) the claim is discontinued (CPR 38.3(4)). The Claimant is likely to be required to pay Company B’s costs, but better to face that now than after losing against Company B at trial. In terms of the other answers, discontinuing against Company A and Company B and issuing new proceedings against Company A is going to be much more costly, and could be an abuse of process. A stay of proceedings would not solve the problem, nor are there grounds for summary judgment. The Claimant would not apply to strike out its own statement of case.
A consent order can be used to settle:
Either / both of an interim application or an entire claim.
An interim application.
An entire claim.
Either / both of an interim application or an entire claim.
Correct. Consent orders can be used to settle an entire claim, but they can also be used for an interim application. For example, if one party needs to apply for extra time for service of witness statements, and the other side agrees to this, then the parties will file a consent order at court and ask the court to approve the consent order (thus allowing the extension). The court is not obliged to do so – it can still refuse the extension – but the court is much more likely to grant an application that all parties agrees to.
The parties settle a breach of contract claim by the Defendant agreeing to pay the Claimant £15,000 and the Claimant giving the Defendant reduced prices on the Claimant’s goods for the next 1 year. Does this need to be reflected in a Tomlin Order, or can a simple Consent Order be used?
A Consent Order is sufficient.
A Tomlin Order is required.
A Tomlin Order is required.
Correct
Correct. The court does not have the power to order that the Claimant must provide its goods on particular terms to the Defendant in a breach of contract claim, so this cannot be included on the face of a Consent Order. These provisions will need to go in the schedule to a Tomlin Order.
A Claimant writes a letter of claim to a Defendant in accordance with the Professional Negligence Pre-Action Protocol. Following the Defendant’s reply, the parties agree to mediate. At the mediation, the Defendant agrees to pay the Claimant £65,000 in full and final settlement. How should this settlement be recorded?
In a Consent Order.
In a Tomlin Order (and schedule).
In a settlement agreement.
In a settlement agreement.
Correct. No proceedings have been issued, so a Consent Order / Tomlin Order are not required. If the settlement agreement is breached, then the aggrieved party effectively has to commence proceedings for breach of contract – the contract being the settlement agreement.
You act for Teleparts Limited, which manufactures parts for televisions. It has instructed you to issue proceedings against Paul Rank & Co, an electronic goods retailer, for failure to pay for goods delivered. The court fixed the trial date to commence on Tuesday 26 November. What is the latest date by which trial bundles must be filed with the court?
Friday 22 November
Tuesday 19 November
Saturday 23 November
Thursday 21 November
Wednesday 20 November
Wednesday 20 November
Correct
Correct. The trial is due to begin on Tuesday 26 November. Trial Bundles must be filed by the claimant not more than 7 days and not less than 3 days before the start of the trial (CPR 39.5(2)). Trial is an “event” and so when counting time (CPR 2.8) this date and the day on which the period begins must be excluded. Days means clear days. The last date on which the trial bundles can be filed is less than 5 days so Saturday and Sunday must also be excluded (CPR 2.8(4)). The trial bundle must therefore be filed at court by Wednesday 20th November. Although counting time is not dealt with in the ‘preparation for trial and trial’ element, this question serves as a reminder that there are time limits and deadlines throughout civil proceedings, including pre-trial, and therefore the counting time rules are just as applicable here.
Incorrect
Tuesday 19 November
Incorrect. Have another look at the question bearing in mind both the rules in relation to trial bundles (in this element), and those in relation to counting time (the latter you covered at an earlier stage in your studies).
At the pre-trial review, what direction MUST the court give on listing?
Trial timetable
Evidence of experts
Preparation of trial bundles
Evidence of witnesses of fact
Fix the trial date
Fix the trial date
Correct
Correct. The guidance on directions the court must give on listing include that the court will fix the trial date (or confirm the date already given)( PD29). It must also give a time estimate for trial and fix the place of trial. The directions the court may give on listing include provision about: evidence (in particular that of experts or other special arrangements), a trial timetable, the preparation of trial bundles and any other matters required to prepare the case for trial.
Who normally prepares the trial bundle?
Court
Every party
Claimant
Defendant
Claimant
Correct (CPR 39.5).
What usually occurs after the claimant’s opening speech at trial?
Claimant’s re-examination
Defendant’s evidence in chief
Claimant’s evidence in chief
Closing speeches
Defendant’s cross-examination
Claimant’s evidence in chief
Correct
Correct. After the claimant’s opening speech, evidence will be called on behalf of the claimant. Such evidence may include the evidence of witnesses (of fact and experts), real evidence and documentary evidence. The witness statement of a witness will stand as the evidence-in-chief of that witness (unless the court orders otherwise)( CPR 32.5(2)). The witness will therefore often take the stand and simply confirm that it is his or her evidence after which the witness will be cross-examined by the defendant’s counsel and re-examined by its own counsel. The defendant’s case follows the claimant’s case with closing speeches at the end.
When addressing in court a High Court Judge, which of the following is in-keeping with court room etiquette?
Would you like me to provide a summary of the facts?
Would My Lord / Lady like me to provide a summary of the facts?
Would Your Highness like me to provide a summary of the facts?
Would Your Honour like me to provide a summary of the facts?
Would My Lord / Lady like me to provide a summary of the facts?
correct
Incorrect
Would Your Honour like me to provide a summary of the facts?
Incorrect. This would be appropriate for addressing a Recorder or Circuit Judge, not a High Court Judge. Revisit this element, and if necessary, the element introducing the court system.
Judgment is given on 6 March against the Defendant in the sum of £10,000. The judgment is silent as to by when this must be paid. By when must it be paid?
It is not possible to say- clarification from the court will be required.
13 March
18 March.
20 March
20 March
Correct
Correct. Unless otherwise specified, parties have 14 days to comply with a judgment or order for the payment of money (CPR 40.11).
A judgment is obtained in the sum of £3,000 (the claim has nothing to do with the Consumer Credit Act 1974). The judgment creditor wants to enforce this by taking control of the debtor’s goods. In which court(s) can this judgment be enforced?
It is not possible to enforce a judgment in the sum of £3,000 by taking control of goods.
High Court only
County Court only
County Court or High Court
County Court or High Court
Correct. Sums of £5,000 or more must be enforced in the High Court. Where the sum is less than £600 or arises out of an agreement regulated by the Consumer Credit Act 1974, it must be enforced in the County Court. In between these financial limits, it can be enforced in either court.
Will an order to obtain information from a judgment debtor under CPR 71 always contain a penal notice?
A penal notice will only be included if the judgment debtor’s assets are located abroad, as enforcement will be more difficult in these circumstances.
Yes, this is a requirement so that the judgment debtor can be imprisoned or fined if they do not comply with the order to attend court and answer questions.
A penal notice might be included if it is anticipated that the judgment debtor might not comply, but this is not a requirement.
No. A penal notice will not be required.
Yes, a penal notice will be included to ensure the judgment debtor understands that they will be asked to answer questions under oath.
Yes, this is a requirement so that the judgment debtor can be imprisoned or fined if they do not comply with the order to attend court and answer questions.
Correct. The penal notice is required by CPR 71.2(7) and is necessary so that the order is enforceable as the judgment debtor will be in contempt of court if they do not comply.
In respect of the hearing following the order to obtain information from a debtor…
The debtor will be given at least 14 days’ notice of the date of the hearing when they must attend court.
The hearing will be without notice and the debtor will not be notified of the date when it happened until afterwards.
The debtor will be given at least 7 days’ notice of the date of the hearing when they must attend court.
The debtor will be given at least 28 days’ notice of the date of the hearing when they must attend court.
The debtor will be given at least 3 days’ notice of the date of the hearing when they must attend court.
The debtor will be given at least 14 days’ notice of the date of the hearing when they must attend court.
Correct
Correct. See CPR 71.3(1).
incorrect
The hearing will be without notice and the debtor will not be notified of the date when it happened until afterwards.
Incorrect. The whole point of this hearing is for the debtor to be present to answer questions. Revisit this element and CPR 71. (without notice may be done for an order to obtain information from the judgment debtor)
When is the best time to first consider / investigate an opponent’s means?
Upon receipt of the opponent’s precedent H (budget)?
Before deciding what steps to take to enforce a judgment.
Upon receipt of a defence
Before commencing proceedings
Before commencing proceedings
Correct
Correct. You need to investigate this at the outset – it is a pre-action consideration. To consider / investigate this only after commencing proceedings is too late, because by that time, your client is bound into proceedings.
A significant advantage of an order to obtain information in comparison with asking for information by correspondence is…
The court’s expertise is harnessed to determine appropriate questions.
The court has a record of the debtor’s answers.
It is quicker and more cost effective.
The debtor might be fined if they refuse to cooperate.
The debtor might be fined if they refuse to cooperate.
Correct
Correct! Well done. An order to obtain information will usually include a penal notice so that the debtor can be committed (ie imprisoned) or fined if they refuse to attend court or to comply with the investigation.
Companies House is useful when it comes to investigating a company’s ability to satisfy a judgment because…
…companies are required to file returns disclosing ability to pay any judgment entered against them.
…it keeps annual accounts for registered companies.
…it provides a credit rating in relation to registered companies.
…it has a register of directors against whom the judgment creditor may then wish to enforce the judgment, including useful details like their address.
…it keeps annual accounts for registered companies.
Correct! Well done. Companies House does not provide credit ratings (but other organisations do, and this can be useful). Companies are not required to file returns in relation to their ability to pay any judgments. Companies House does keep a register of directors, but a judgment against a company cannot simply be enforced against a director – directors are not responsible for the debts of the company they direct.
If using Taking Control of Goods to enforce a debt of £4,500 …
You would have to use the High Court to enforce this debt.
You would need to issue a writ of control in order to commence these enforcement proceedings in the County Court to enforce this debt.
You could use either the County Court or High Court to enforce this debt.
You would have to use the County Court to enforce this debt.
You would need to issue a warrant of control in order to commence these enforcement proceedings in the High Court to enforce this debt.
You could use either the County Court or High Court to enforce this debt.
Correct. For debts of between £600 and £5,000 such as this, the judgment creditor has a choice of using either the County Court or the High Court as set out in the High Court and County Courts Jurisdiction Order 1991.
A judgment debtor has the following assets: a house valued at £500,000 which is mortgaged and owned jointly with their spouse, a salary of £100,000 per year from their employer ABC Limited, a company car worth £25,000 from ABC Limited and a collection of vintage books valued at £50,000.
Which of the following would be the best approach to enforce a judgment debt of £75,000?
Taking Control of Goods against the car and an attachment of earnings order for the balance owed of £50,000.
A charging order against the house as the equity in this asset would likely be able to cover the full debt meaning only one set of enforcement proceedings would be necessary.
An attachment of earnings order against the salary from ABC Limited
Taking Control of Goods against the book collection and an attachment of earnings order for the balance owed of £25,000.
Taking Control of Goods against the book collection and car.
Taking Control of Goods against the book collection and an attachment of earnings order for the balance owed of £25,000.
Correct. TCG against the book collection should quickly realise up to £50,000 and the balance can be paid in instalments by deductions from the judgment debtor’s salary from ABC Limited. The house is mortgaged so this charge will stand in front of the current debt, and jointly owned which might prevent an order for sale. The car belongs to ABC Limited so is not an asset that can be used.
Which of the following statements about insolvency proceedings is correct?
A petition to wind up a company can be issued when the judgment debt against them is more than £5,000.
If a bankruptcy order is made, the debt owed to the judgment creditor who brought the insolvency proceedings and issued the petition will be paid first.
A petition for bankruptcy can be issued against a company when the judgment debt against them is more than £750.
If a statutory demand is served, the judgment creditor is prevented from going on to issue a bankruptcy petition against the judgment debtor.
A petition for bankruptcy can be issued against an individual when the judgment debt against them is more than £5,000.
A petition for bankruptcy can be issued against an individual when the judgment debt against them is more than £5,000.
Correct
Correct
An application for permission to appeal …
Must be made to the appeal court.
Must be made at the lower court.
Must be made to the Court of Appeal.
Can be made at the lower court or to the appeal court or to both of these courts in turn.
Can be made at the lower court or to the appeal court but cannot be made to both of these courts.
Can be made at the lower court or to the appeal court or to both of these courts in turn.
Correct. The appellant has a choice and an unsuccessful application to the lower court does not preclude a further application for permission to the appeal court (CPR 52.3(2)).
Permission to appeal will only be granted where the court considers that:
The case raises an important question on which further argument and a decision of the appeal court would be to the public advantage.
The appeal would have an extremely high prospect of success or there is some other compelling reason why the appeal should be heard.
The appeal would have an extremely high prospect of success and there is some other compelling reason why the appeal should be heard.
The appeal would have a real prospect of success and there is some other compelling reason why the appeal should be heard
The appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
The appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.
Correct
Correct. CPR 52.6 confirms that this is the applicable test for the court when considering whether to grant permission to appeal.
An appeal against the decision of a County Court Circuit Judge will be heard by a…
County Court Circuit Judge.
Lord Justice in the Court of Appeal.
High Court Judge.
County Court District Judge.
High Court Master.
High Court Judge.
Correct. This is the next level of judge in the court hierarchy. Also see 52A PD 3.5.
A claimant succeeds in a professional negligence claim against a defendant company. Judgment is for £80,000 plus costs of £35,000. The defendant company refuses to pay the judgment, indicating that it has no money to do so. The claimant believes the defendant has substantial cash in the bank. What is the best way for the claimant to receive confirmation as to whether this is the case?
Apply for specific disclosure of documentation in relation to the assets.
Draw the defendant’s conduct to the court’s attention in relation to costs.
Apply for an order that a representative from the defendant should attend court to answer questions about the assets.
Apply for a witness summons in relation to the defendant.
Apply for a High Court Execution Officer to make enquiries as to the defendant’s assets.
Apply for an order that a representative from the defendant should attend court to answer questions about the assets.
Correct. This procedure where the court becomes involved and which is also known as oral examination of a debtor (CPR 71) would be the best way. Neither specific disclosure nor a witness summons is appropriate now that the proceedings have concluded. The court does not have a costs decision to make, and therefore drawing the defendant’s conduct to the court’s attention in relation to costs is not going to help. An execution officer is not used to make enquiries as to the defendant’s assets.
incorrect
Apply for a High Court Execution Officer to make enquiries as to the defendant’s assets.
Incorrect. An execution officer is not used to make enquiries as to the defendant’s assets. Revisit the element ‘introduction to enforcement’.
Apply for a witness summons in relation to the defendant.
Incorrect. A witness summons is not appropriate now that the proceedings have concluded. Revisit the element ‘introduction to enforcement’.
Apply for specific disclosure of documentation in relation to the assets.
Incorrect. Specific disclosure is not appropriate now that the proceedings have concluded. Revisit the element ‘introduction to enforcement’.
The High Court allows a claim for breach of statutory duty in reliance on an interpretation of legislative provision which is irreconcilable with an earlier, binding Supreme Court decision.
Does the Defendant have good grounds for an appeal in relation to the finding in favour of the claimant?
No, because the decision related to the common law which is decided on a case-by-case basis.
Yes, because the decision of the court was unjust.
Yes, because the decision was beyond the power of the court.
No, because the grounds for an appeal are not made out.
Yes, because the decision of the court was wrong.
Yes, because the decision of the court was wrong.
Correct
Correct. An appeal court will allow an appeal where the decision of the lower court was wrong or unjust (CPR 52.21(3)). The clearest ground here is that the court’s decision was wrong, because it contained an error of law – an unsustainable interpretation of statute. There is nothing on the facts to suggest that the lower court exceeded its powers. The decision did not really relate to the common law, it related to the interpretation of statute, but either way, such decisions can be appealed if the grounds are established.
The claimant is considering enforcement of a judgment of £30,000 against a defendant which is a limited company. The defendant operates its business from rented offices. The defendant has a fleet of vans (not subject to finance) as well as £6,000 in the bank, and approximately 12 employees. The defendant’s customers owe it in excess of £45,000 (made up of around 60 customers that each owe between £500 and £1,000).
Which of the following do you consider to be the most suitable method of enforcement to use first in these circumstances?
Third Party Debt Order
Charging Order
Present a bankruptcy petition.
Attachment of Earnings Order
Taking Control of Goods Order
Taking Control of Goods Order
Correct. This is the best option on the facts and should be effective against the fleet of vans which will have sufficient value to make this worthwhile. In terms of the incorrect answers, a charging order is applied to property, but this is not an option for rented premises. An attachment of earnings order is applied to an individual defendant’s salary – not to a defendant which is a limited company (and which is paying salaries, not receiving a salary). A Third Party Debt Order could be used to ensure the claimant receives the amount owed by the defendant’s customers when paid, but this is not practicable / possible when you are faced with many small debts (not any big ones).
incorrect
Third Party Debt Order
Incorrect. A Third Party Debt Order could be used to ensure the claimant receives the amount owed by the defendant’s customers when paid, but this is not practicable / possible when you are faced with many small debts (not any big ones). Revisit the element ‘methods of enforcement’.
Attachment of Earnings Order
Incorrect. An attachment of earnings order is applied to an individual defendant’s salary – not to a defendant which is a limited company (and which is paying salaries, not receiving a salary). Revisit the element ‘methods of enforcement’.
At the conclusion of a fast-track trial on Monday 5 November, the court gives judgment for the claimant in the sum of £18,000. The order is subsequently drawn up by the court on Wednesday 7 November, and received by the defendant (in the post) on Friday 9 November. By when must the defendant pay the judgment sum (unless ordered otherwise)?
Monday 12 November
Monday 19 November
Wednesday 21 November
Wednesday 14 November
Friday 16 November
Monday 19 November
Correct. (CPR 40.11).
In finding for the defendant in a breach of contract claim the judge says the following in their judgment:
‘The claimant must accept responsibility for the slogan it used when marketing the goods, ‘’Better than anything else you can buy – guaranteed’’. This was not an invitation to treat or a ‘mere puff’ but, in my judgment, became a contractual term.’
What is the most appropriate ground for appeal for the unsuccessful claimant?
The judge’s decision was wrong because they erred in law.
The judge’s decision was unjust.
The judge’s decision was wrong because they erred in fact.
The judge’s decision was unjust due to an ‘other’ procedural irregularity.
The judge’s decision was unjust due to a serious procedural irregularity.
The judge’s decision was wrong because they erred in law.
Correct. See the element ‘Appeals (solicitor)’ and your materials from your study of contract law prior to this module.
The question of ‘jurisdiction’ is concerned with…
Which courts can determine a dispute.
The powers that a court has by way of remedy.
Whether or not a dispute is governed by English Law.
Which courts can determine a dispute.
correct
The topic of choice of law or conflict of laws is about…
Whether a dispute should be heard in England or in Wales.
Whether a dispute is determined according to the law of England and Wales, or some other country’s law.
In which country should proceedings be brought.
Whether a dispute is determined according to the law of England and Wales, or some other country’s law.
What is the connection between jurisdiction and applicable law?
The two things should be considered separately.
If English / Welsh law applies, then the courts of England and Wales have jurisdiction.
If the courts of England and Wales have jurisdiction, then English / Welsh law will apply.
The two things should be considered separately.
correct
Which of the following best explains broadly when the Hague Convention applies?
The parties have contractually agreed the jurisdiction.
The dispute is a tortious one
The dispute is a contractual one.
The parties have contractually agreed the jurisdiction.
Correct. The Hague Convention is about choice of court agreements – where the parties have chosen the court (contractually).
In order for the Hague Convention to apply, jurisdiction must be given to a contracting state (a state which has signed up to the Convention) exclusively. This means…
Only contracting states have jurisdiction.
A contracting state has jurisdiction and nowhere else has jurisdiction.
One party exclusively has the choice of jurisdiction – the other party has no choice.
A contracting state has jurisdiction to determine all aspects of the dispute, whereas other states only have jurisdiction to determine certain aspects of the dispute.
Correct. This is how an exclusive jurisdiction clause operates.
A contracting state has jurisdiction and nowhere else has jurisdiction.
A French citizen is in England for 1 month for business purposes. It is likely to be best to serve proceedings on him in relation to a claim against him personally by….
personal service on him whilst he is in England, with the court’s permission.
applying for permission to serve proceedings on him in France.
personal service on him whilst he is in England.
personal service on him whilst he is in England.
Correct
Correct. This is relatively straightforward (as long as he can be located) and does not require an application to court. The courts of England and Wales will have jurisdiction unless it is later contested.
In order to obtain permission to serve proceedings out of the jurisdiction, three matters must be established. Which of the following is not one of them?
The defendant or the subject matter of the dispute is or has been in the jurisdiction
England and Wales must be the ‘proper place’ in which to bring the claim
The claimant needs to establish one of the gateways in the CPR, such as that the claim is a breach of contract committed in the jurisdiction
The claim must have reasonable prospects of success
The defendant or the subject matter of the dispute is or has been in the jurisdiction
Correct. This is not one of the three matters that must be established
If the three matters set out in the last question are established, then the court…
…will grant permission to serve out of the jurisdiction.
…may grant permission to serve out of the jurisdiction.
…may grant permission to serve out of the jurisdiction.
Correct
Correct – the court has a discretion.
A party can serve proceedings outside of the jurisdiction without the court’s permission if…
the contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (whether or not jurisdiction is exclusive).
the contract contains a term to the effect that the courts of England and/or Wales shall have exclusive jurisdiction to determine that claim.
the contract contains a term to the effect that proceedings can be served outside of the jurisdiction without the permission of the court.
the contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (whether or not jurisdiction is exclusive).
Correct
Correct – the court has a discretion.
incorrect
the contract contains a term to the effect that the courts of England and/or Wales shall have exclusive jurisdiction to determine that claim.
It is correct that a party can serve proceedings outside of the jurisdiction without the court’s permission if the contract contains a term to the effect that the courts of England and/or Wales shall have exclusive jurisdiction to determine that claim, but the rule is in fact slightly broader than this. Revisit this element.
Where a claim form has validly been issued, the period for service where the claim form is to be served outside the jurisdiction is how many months?
6
4
3
5
6
Correct. Well done – see CPR 7.5(2).
Where a claim form is served out of the jurisdiction without the permission of the court, how will the court know on what basis it is alleged that the court has jurisdiction over the foreign defendant?
This is indicated on a form filed when the claim is issued.
This is indicated on the claim form at the time of filing.
This is explained in a witness statement served in the event that judgment in default is required, or there is a dispute about jurisdiction.
This is indicated on a form filed when the claim is issued.
Correct – Form N510.
How long does the defendant have to respond to proceedings (with either an acknowledgement of service or a defence) when served out of the jurisdiction?
14 days
This varies, depending primarily on the country in which service takes place.
56 days.
28 days.
This varies, depending primarily on the country in which service takes place.
Correct. Well done.
Alternative service is…
…serving by a method not generally permitted by the CPR.
…serving at an address which is not the defendant’s normal place of business or residence.
…serving at an address which is not in the jurisdiction.
…serving by a method not generally permitted by the CPR.
Correct. See CPR 6.15.
In order to obtain an order for alternative service, it is generally necessary to show that…
…the defendant is trying to evade service.
…the defendant is not resident in the jurisdiction.
…the usual methods of service are impossible / ineffective.
…the usual methods of service are impossible / ineffective.
Correct
Correct. See CPR 6.15.
Is the court likely to dispense with service of a claim form?
No, the court cannot dispense with service of the claim form.
This is very unlikely unless the defendant is aware of the proceedings.
Yes, if the claimant has made reasonable attempts at service.
This is very unlikely unless the defendant is aware of the proceedings.
Correct. See CPR 6.16.
A defendant who objects to the jurisdiction of England and Wales should do what?
Indicate this on the acknowledgement of service and then apply to court disputing the court’s jurisdiction.
Indicate this on the acknowledgement of service and then set out the grounds of dispute in its defence.
Indicate this on the acknowledgement of service and then take no further part in the proceedings.
Set out the grounds of dispute in its defence and then apply to court disputing the court’s jurisdiction.
Indicate this on the acknowledgement of service and then apply to court disputing the court’s jurisdiction.
Correct. This is the correct procedure. See CPR 11.
Within how many days after filing an acknowledgement of service must an application disputing the court’s jurisdiction be made?
14
7
21
28
14
Correct. This is the correct procedure. See CPR 11(4).
The effect of submitting to the court’s jurisdiction is that…
… the court will allow service within the jurisdiction.
… the defendant only has 14 days to apply to dispute jurisdiction.
… the court is, for practical purposes, given jurisdiction.
… the court is, for practical purposes, given jurisdiction.
Correct
Correct. Well done!
Which of the following is likely to amount to submitting to the jurisdiction?
…filing an acknowledgement of service
…responding to a letter before claim
…none of the other answers is likely to amount to submitting to the jurisdiction
…filing a defence
…filing a defence
Correct
Correct. Well done! A defendant wishing to avoid submitting to the court’s jurisdiction should avoid filing a defence, even if the defence repeats the objection to jurisdiction.
Rome I applies (with some exceptions) to…
…contracts entered into on or after 17 December 2009
…breaches of contract on or after 17 December 2009
…proceedings in relation to breach of contract commenced on or after 17 December 2009
…losses caused by a breach of contract, suffered on or after 17 December 2009
…contracts entered into on or after 17 December 2009
Correct. Well done.
Once you have determined that Rome I applies, the starting point with Rome I is to consider…
…whether the parties have made a choice of law.
…the type of contract.
…where the defendant habitually resides.
…where the claimant habitually resides.
…whether the parties have made a choice of law.
Correct. Well done. See Article 3.
In the absence of a choice of law by the parties, a sale of goods contract is most likely to be governed by the law of…
…the country in which the contract was breached.
…the country where the buyer habitually resides.
…the country where the seller habitually resides.
…the country where the contract was formed.
…the country where the seller habitually resides.
Correct. See Article 4(1).
Rome II applies (with some exceptions) to…
…torts arising out of relationships formed on or after 10 January 2009
…damage suffered on or after 10 January 2009
…events giving rise to damage which occur on or after 10 January 2009
…proceedings (in relation to a tort) commenced on or after 10 January 2009
…events giving rise to damage which occur on or after 10 January 2009
Correct. Well done.
Once you have determined that Rome II applies, the starting point with Rome II is to consider…
…whether the parties have made a choice of law.
…where the claimant habitually resides.
…where the harm was suffered.
…where the defendant habitually resides.
…whether the parties have made a choice of law.
Correct. Well done. See Article 14.
In the absence of a choice of law by the parties and assuming both parties are not resident in the same jurisdiction, the general rule is that the applicable law is that of…
…the country where the damage occurs.
…the country were the tortious event occurs.
…the country where the victim habitually resides.
…the country where the victim suffers any financial losses.
…the country where the damage occurs.
Correct. See Article 4(1).
Ben is on holiday in Scotland when is hit crossing a road by a man negligently driving his kids to school. Based on these facts, where is it most likely that Ben can commence proceedings?
Proceedings must be commenced in both England and Scotland.
In England or Scotland.
In England only.
In Scotland only.
In Scotland only.
Correct
Correct. The exclusive jurisdiction rules do not apply and there has been no choice of jurisdiction by the parties. The basic rule is that the defendant should be sued where he lives, which appears to be Scotland on the facts provided (although you would need to check). The rules provide, as an alternative, that proceedings can be commenced in relation to tort where the harmful event occurs, but this is also Scotland.
Ben is walking to the shops in his hometown in England when is hit crossing a road by a Northern Irish man on holiday in England. Based on these facts, where is it most likely that Ben can commence proceedings?
In England or Northern Ireland.
In Northern Ireland only.
In England only.
In any part of the UK.
In England or Northern Ireland.
Correct
Correct. The exclusive jurisdiction rules do not apply and there has been no choice of jurisdiction by the parties. The basic rule is that the defendant should be sued where he lives, which appears to be Northern Ireland on the facts provided (although you would need to check). The rules provide, as an alternative, that proceedings can be commenced in relation to tort where the harmful event occurs, which is England. So the claimant has a choice whether to commence proceedings in England or Northern Ireland.
A company incorporated in England & Wales purchases a plot of land in Scotland. In breach of contract, the seller fails to complete the purchase (transfer the land) on the agreed date. Completion was set to take place at the company’s solicitors’ offices in England. Based on these facts, where is it most likely that Ben can commence proceedings?
In any part of the UK.
In England only.
In Scotland only.
In England or Scotland.
In Scotland only.
Correct
Correct. The exclusive jurisdiction rules apply – this dispute is concerned with real property, and so the part of the UK in which the property is situated will have exclusive jurisdiction. On the facts, this is Scotland. It does not matter that the Defendant is domiciled in Scotland or where the obligation in question was due to be performed.
A driver and her husband are both British nationals, living in England. Whilst on holiday in Italy, they are involved in a car accident with another car driven by an Italian national. It is in no way the Italian driver’s fault, but rather was caused by the British driver’s negligence.
The British driver’s husband is injured and he commences proceedings against his wife in England claiming damages, primarily for loss of earnings.
Which country’s laws are most likely to be applied by the English court and why?
[A] The law of England, because most of the husband’s losses are sustained in England.
[B] The law of Italy, because that is where the accident takes place.
[C] The law of Italy, because that is where the injury was suffered.
[D] The law of Italy, because the accident involved an Italian national.
[E] The law of England, because the driver and her husband both live in England.
[E] The law of England, because the driver and her husband both live in England.
correct
but
what if the accident had been the Italian driver’s fault? then it would be Italy as the damage occurred there
MCQ 2
A claimant commences proceedings in the English courts against a defendant based in France alleging breach of contract. It is clear to the defendant that, pursuant to a clause in the contract, proceedings should have been commenced in France (if at all), not England.
What is the next step that the defendant should take in the proceedings?
[A] Apply to court for the proceedings to be struck out
[B] File an acknowledgement of service and apply to court challenging the court’s jurisdiction
[C] File an acknowledgement of service and apply to court for summary judgment.
[D] File a defence (preceded by an acknowledgement if more time is needed) setting out the basis for defending a claim brought in England
[E] Serve a request for further information as to the basis on which it is alleged that the courts of England have jurisdiction.
[B] File an acknowledgement of service and apply to court challenging the court’s jurisdiction
MCQ 2 – answer B
The procedure required is set out in the rules and the application must be made within 14 days of filing the acknowledgement of service (CPR 11(1), (2) and (4))
Avoid submitting to the jurisdiction, unless that is what you want!
E is wrong because prompt says “IT IS CLEAR TO THE DEFENDANT THAT”
A driver and her husband are both British nationals, living in England. Whilst on holiday in Italy, they are involved in a car accident with another car driven by an Italian national. It is in no way the Italian driver’s fault, but rather was caused by the British driver’s negligence. The British driver’s husband is injured and he commences proceedings against his wife in England claiming damages, primarily for loss of earnings.
Which country’s laws are most likely to be applied by the English court and why?
The law of England, because the driver and her husband both live in England
The law of Italy, because that is where the injury was suffered
The law of Italy, because the accident involved an Italian national
The law of Italy, because that is where the accident takes place.
The law of England, because most of the husband’s losses are sustained in England.
The law of England, because the driver and her husband both live in England
Correct. The Rome II Regulation will apply to this dispute. Pursuant to Article 4(2), both the husband and wife have their habitual residence in England, and therefore the laws of England apply.
A claimant commences proceedings in the English courts against a defendant based in France alleging breach of contract. It is clear to the defendant that pursuant to a clause in the contract proceedings should have been commenced in France (if at all), not England.
What is the next step that the defendant should take in the proceedings?
File an acknowledgement of service and apply to court challenging the court’s jurisdiction
Apply to court for the proceedings to be struck out
File an acknowledgement of service and apply to court for summary judgment
File a defence (preceded by an acknowledgment if more time is needed) setting out the basis for defending a claim brought in England
Serve a request for further information as to the basis on which it is alleged that the courts of England have jurisdiction
File an acknowledgement of service and apply to court challenging the court’s jurisdiction
Correct. This is provided for in CPR 11(1), (2) and (4). It would be wrong to apply for proceedings to be struck out or to apply for summary judgment when CPR 11 provides a procedure specifically for challenging jurisdiction. Filing a defence is not advisable – it may well amount to submitting to the jurisdiction, making it impossible to later challenge jurisdiction. There is no suggestion on the facts that further information is required.
A company based in England enters into a contract with a company based in Italy. The Italian company agrees to buy agricultural machinery from the English company. The contract is formed at a meeting in England. Delivery is to be in Italy. The goods are defective as manufactured, and the defects are not detected until after delivery to the Italian company, which complains about the defects and refuses to pay for the goods. The English company wishes to commence proceedings in relation to the unpaid invoices in England. There is no ‘choice of law’ clause in the contract.
Which country’s laws will govern this dispute?
English law because England is where the contract was formed.
Italian law because Italy is where the defendant resides.
English law because England is where the party giving the characteristic performance resides.
Italian law because Italy is where the contract was breached.
English law because England is where the seller resides.
English law because England is where the seller resides.
Correct
Correct. Rome I will apply to this dispute. The parties have not chosen any particular law. Under Article 4(1)(a), a contract for the sale of goods shall be governed by the law of the country where the seller has its habitual residence. The seller is the English company, habitually resident in England, so English law applies. There is no reason to conclude that the contract is manifestly more closely connected with another country (and this is not one of the available answers anyway). The ‘characteristic performer’ is only relevant if the contract is not within one of the categories in Article 4(1).
incorrect
English law because England is where the party giving the characteristic performance resides.
Incorrect. The ‘characteristic performer’ is only relevant if the contract is not within one of the categories in Article 4(1). Revisit Article 4 of the Rome I Regulation and/or your materials relating to conflict of laws in contractual disputes.
A provider of advertising services based in Germany enters into an agreement with a software company in Canada to advertise the software company’s products in Germany. The written contract between the parties provides that the Courts of England and Wales will have exclusive jurisdiction to determine any dispute relating to the parties’ relationship or dealings. Neither party has a presence in England or Wales at any relevant time. A dispute arises. How should the advertising company proceed if it wishes to pursue proceedings against the Canadian company in the English courts?
The court’s permission should be sought to serve proceedings out of the jurisdiction.
The proceedings should be served out of the jurisdiction without seeking the court’s permission.
An order for service by alternative means should be sought.
The proceedings should be served in the jurisdiction next time the Canadian company is present in the jurisdiction.
It is not possible to pursue proceedings against the Canadian company in the English courts in these circumstances.
The proceedings should be served out of the jurisdiction without seeking the court’s permission.
Correct. This is permissible pursuant to the provisions of the Hague Convention and CPR (CPR 6.33(2B)). As proceedings can be served outside the jurisdiction without the court’s permission, applying for the court’s permission would waste time and money. Waiting for the Canadian company to be present in the jurisdiction could be an indefinite wait on the facts presented. An order for service by alternative means is neither necessary nor appropriate.
Incorrect
An order for service by alternative means should be sought.
Incorrect. This is neither necessary nor appropriate. Revisit the element relating to jurisdiction and the Hague Convention.
The court’s permission should be sought to serve proceedings out of the jurisdiction.
Incorrect. Applying for the court’s permission would waste time and money. Revisit the element relating to jurisdiction and the Hague Convention.
A claimant is having difficulty serving proceedings on a defendant in relation to a breach of contract because the defendant refuses to reveal his location or address. The parties had always corresponded by email before any dispute arose, and the defendant continues to reply to emails from the same email address, and to email the court from that email address. It has always been clear, and the defendant continues to admit, that the defendant is present and based in England. The claim form needs to be served within the next 4 months. Which of the following is the best course of action for the claimant to take to address the difficulties with service?
Apply to the court for permission to serve proceedings by an alternative method.
Apply to the court for an extension of time for service of the claim form.
Serve the proceedings by email.
Apply to the court for an order dispensing with the need to serve proceedings.
Apply to the court for permission to serve the proceedings outside of the jurisdiction.
Apply to the court for permission to serve proceedings by an alternative method.
Correct
Correct. This is permitted by the rules (CPR 6.15), and the alternative method likely to be sought is service by email, given this is an established form of communication between the parties and the defendant seems to be intentionally avoiding service by other means. The court is unlikely to dispense with service of the claim form: one way or another, the proceedings still need to reach the defendant. An extension of time for service of the claim form might be necessary, but it does not address the underlying problem – it simply buys more time. There is nothing on the facts to suggest that the defendant is outside of the jurisdiction. It is not permissible to serve the proceedings by email unless the other party agrees to such service (6A PD 4.1).
Apply to the court for an order dispensing with the need to serve proceedings.
The court is unlikely to dispense with service of the claim form: one way or another, the proceedings still need to reach the defendant. Revisit the element relating to difficulties with service.
A passenger in a road traffic accident commences proceedings in the County Court against the driver seeking damages to be assessed. The claim form indicates that the claimant expects to recover in excess of £25,000. The claim form and particulars of claim are served on the defendant. The defendant admits the whole of the claim but does not offer a sum in satisfaction of the claim.
What should happen next following the defendant’s admission?
Select one alternative:
There is no need for the claimant to take action in relation to the admission. The court will automatically arrange a hearing to consider judgment on liability and quantum.
There is no need for the claimant to take action in relation to the admission. The court will automatically enter judgment on liability and quantum.
There is no need for the claimant to take action in relation to the admission. The court will automatically enter judgment on liability with quantum to be decided at a later hearing.
The claimant should make a request for judgment. The court will then enter judgment on liability with quantum to be decided at a hearing.
Answered and correct
The claimant should make a request for judgment. The court will then arrange a hearing to determine liability and quantum.
The claimant should make a request for judgment. The court will then enter judgment on liability with quantum to be decided at a hearing.
This question tested your knowledge and understanding of the procedure when an unspecified claim is admitted in full (CPR 14.6 and 14.7). This is covered in the element ‘Admitting the claim’ in the topic ‘Responding to proceedings’. Where an unspecified claim is admitted and the defendant does not offer a sum of money in satisfaction of the claim, the claimant may request judgment by filing a request in the relevant practice form (this is not automatic) and that judgment (ie on liability) will be for an amount to be decided by the court and costs.
Your client is the claimant in a breach of contract action. They want to make an immediate application to the master for summary judgment against the defendant. Service of the acknowledgment of service has just taken place, indicating that the defendant intends to defend the claim.
What is the most likely costs order which the master will make if the client’s application fails at a hearing of an application for summary judgment?
Select one alternative:
A wasted costs order.
No order as to costs.
Costs of the application to the claimant, in any event.
Defendant’s costs in the case.
Costs of the application to the defendant, in any event.
Costs of the application to the defendant, in any event.
This question was about the likely costs order following an unsuccessful application for Summary Judgment. This was covered in the element ‘Overview of costs’ in the topic ‘Costs’.
Correct. This means the claimant will have to pay the costs of the unsuccessful application to the defendant. This would be the ‘usual rule’ given that the application has been unsuccessful (CPR 44.2 and 44 PD 4.2), and is especially likely given that the application was made before the defence was filed.
ou are instructed by the claimant company, a supplier of goods to nightclubs, which has brought proceedings to recover the sum of £45,000 from a nightclub operator. The claimant has reviewed the nightclub operator’s annual accounts which show that the nightclub operator has sustained a loss in each of the last three trading years and has almost no assets. The nightclub operator is defending the claim and the claimant is concerned that the nightclub operator will be unable to pay the claimant’s costs if ordered to do so.
What is the best advice to give to the claimant in relation to trying to improve its position in relation to costs recovery?
Select one alternative:
The claimant should not apply for security for costs because there is no basis for such an application.
The claimant should apply for security for costs because this will stop the defendant from dissipating any remaining assets.
The claimant should not apply for security for costs because the nightclub operator’s annual accounts are not relevant in assessing the nightclub operator’s financial position.
The claimant should apply for security for costs because this will provide a sum of money (or other security) which will later be available to satisfy a costs order.
The claimant should apply for security for costs because this will bring the proceedings to a quicker conclusion.
The claimant should not apply for security for costs because there is no basis for such an application.
This question tested your understanding of when security for costs can be obtained and the effect of an order for security for costs. This was covered in the element ‘Security for costs’ in the topic ‘Interim remedies’. In proceedings such as these, without any counterclaim, there is no basis for a claimant seeking security for costs from a defendant. Only the defendant can seek security (from the claimant). So there is no basis for an application on these facts. In circumstances when security for costs is obtained, it provides a sum of money (or other security) which will later be available to satisfy a costs order. It does not necessarily stop the defendant dissipating any remaining assets nor bring the proceedings to a quick conclusion (although it could, indirectly, have either or both of those effects). Annual accounts are usually highly relevant in assessing a party’s financial position.
A claimant has made a claim for £20,000 against a defendant company in relation to a breach of contract. The court expects the trial to take 2 days. Expert evidence will be required from one expert on behalf of each party.
What is the normal track for this claim, the fast track or the multi-track?
Select one alternative:
The fast track, because of the value of the claim.
The multi-track, because of the estimated length of trial.
The fast track, because of the expert evidence required.
The multi-track, because of the value of the claim.
The multi-track, because of the expert of the evidence required.
The multi-track, because of the estimated length of trial.
This question required you to understand the considerations in determining the ‘normal’ track for a claim, and not limit your analysis to just the ‘value’ of the claim. This was covered in the element ‘Allocation to track’ in the topic ‘Case management’.
Correct. The fast track is suitable for claims (outside of the small claims track) with a value of £25,000 or less, but only if the requirements for length of trial and expert evidence are also limited as provided for in the rules (CPR 26.6(5)) in particular the trial is likely to last for no longer than one day. The trial in this case is likely to last 2 days, and therefore the fast track is not the normal track, and the multi-track is the normal track instead.
–
Incorrect. From the point of view of expert evidence, this claim is suitable for the fast-track, but expert evidence is not the only relevant consideration. Revisit your materials on allocation (CPR 26.6).
On Monday 1 February, the Claimant issued a Claim Form in the High Court against the Defendant claiming £24,000 in damages. The Claim Form was served by first class post on the Defendant, being posted on Tuesday 2 February. Particulars of claim have not yet been prepared. Today’s date is Wednesday 17 February. The Defendant has not acknowledged service nor entered a Defence.
Can the Claimant obtain judgment in default?
Select one alternative:
No, because the time period for responding will not elapse until tomorrow.
Yes, because the time period for responding elapsed 2 day ago.
No, because the time period for responding has not yet started to run.
Yes, because the time period for responding elapsed 1 day ago.
No, because the time period for responding will elapse at the end of today.
No, because the time period for responding has not yet started to run.
This question required you to understand what document the defendant must respond to in the proceedings. This was covered in the element ‘Introduction to responding to proceedings’. It also required you to know what default judgment is. This was covered in the element on ‘Default judgment’.
Correct. The Defendant does not need to respond to proceedings until particulars of claim are served (CPR 9.1) so judgment in default is not possible (CPR 12).
A motorcyclist was involved in a road traffic accident on 5 May 2018 caused by a driver not exercising the care required. The parties exchanged names and contact details on the scene. The motorcyclist immediately suffered headaches and sickness but did not seek medical attention for these until 12 July 2018, by which time these symptoms had persisted for more than two months.
What is the latest date the motorcyclist can bring a claim for damages for personal injuries against the driver?
Select one alternative:
5 May 2021
12 July 2024
12 July 2021
5 May 2024
5 May 2019
5 May 2021
This question tested your knowledge of, and ability to apply, the key provisions on limitation (Limitation Act 1980), in particular in relation to a tortious personal injury claim. This was covered in the element ‘Limitation’ in the topic ‘Pre-action considerations and conduct’.
Correct. This is a personal injury claim and the relevant limitation period is 3 years from the date on which the cause of action accrued (s 11 Limitation Act 1980). The cause of action accrued on the date of the accident and, despite the client not seeking medical attention until two months later, there is nothing on the facts to suggest that this is a claim where ‘date of knowledge’ is relevant to impact this limitation date. Time starts running from the day after the cause of action accrued (ie day 1 of counting is 6 May 2018) so the last date the claim can be issued is 5 May 2021.
A software company wishes to bring a simple breach of contract claim against one of its main suppliers. It has just sent a letter to the proposed defendant detailing the basis upon which the claim is made, a summary of the facts and what it is looking for in terms of remedy. It also sets out how this figure is calculated.
Which of the following statements best describes what the defendant should do next?
Select one alternative:
The proposed defendant does not need to respond to the letter because there is no specific pre-action protocol covering the subject of the claim.
The proposed defendant does not need to respond to the letter because proceedings have not yet been issued.
The proposed defendant does not need to respond to the letter because it has not received sufficient details in relation to the claim.
The proposed defendant should respond to the letter within a reasonable time which is likely to be around 14 days.
The proposed defendant should respond to the letter within a reasonable time which is likely to be around three months.
The proposed defendant should respond to the letter within a reasonable time which is likely to be around 14 days.
This question required an understanding of the existence, purpose and provisions of the Practice Direction on Pre-Action Conduct. This was covered in the element ‘Pre action conduct’ in the topic ‘Pre-action considerations and conduct’.
Correct. Where there is no relevant pre-action protocol the parties should exchange correspondence and information to comply with the objectives in the Practice Direction on Pre-Action Conduct. Such steps will usually include a defendant responding to the initial letter of claim within a reasonable time – 14 days in a straightforward case as here and no more than three months in a very complex one.
A pedestrian is involved in an accident with a motorist and a cyclist. The pedestrian commences proceedings against the motorist, and serves the claim form and particulars of claim on the motorist. On considering the motorist’s defence, the pedestrian wishes to add the cyclist as an additional defendant to the proceedings.
Does the pedestrian require permission or consent from the court or another party to add the cyclist as a defendant?
Select one alternative:
Permission / consent is not required from the court, motorist or cyclist.
Permission / consent from either the court or the motorist is sufficient.
Permission / consent from either the court or the cyclist is sufficient.
Permission / consent is needed from the court.
Permission / consent is needed from the cyclist.
Permission / consent is needed from the court.
This question tested your understanding of the procedural requirements when a claimant seeks to add a party. This was covered in the element ‘Amending statements of case and changing parties’ in the topic ‘Statements of case’. The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served (CPR 19.4(1)). The claim form has been served in this case, and therefore the court’s permission is required. Whilst obtaining the motorist and/or cyclist’s consent to that application will give the application better prospects of success, their consent is neither necessary nor sufficient to add the party.
The claimant in a personal injury claim files an application for summary judgment and is given a hearing date of Thursday 28 November for that application.
Assuming that the claimant is responsible for giving the defendant notice of that hearing, what is the latest day by which the claimant must give that notice?
Select one alternative:
Monday 25 November
Wednesday 20 November
Wednesday 13 November
Friday 22 November
Thursday 14 November
Wednesday 13 November
This question tested your knowledge of the procedural requirements for an application for summary judgment. This was covered in the element ‘Summary judgment’ in the topic ‘Early disposal’. It also required you to understand how to ‘count time’ (CPR 2.8), and this was covered in the element ‘Acknowledging and defending the claim’ in the topic ‘Responding to proceedings’. Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of (a) the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the hearing (CPR 24.4(3)). When counting a period of time which ends on a hearing, the day of the hearing is excluded from the count, as is the day you start counting at the start of the period, so 14 days takes you to Wednesday 13 November.
A technology company has been working in a joint venture with a robotics company developing robots for use in hospitals. The two have developed a disagreement about the future of the joint venture. The robotics company is threatening to enter into a new joint venture with a private hospital, and to disclose confidential information about the robots with that hospital imminently. The technology company alleges that this would be a breach of the joint venture agreement and extremely harmful. It wishes to prevent this disclosure from taking place. It has a very strong claim. It is preparing court proceedings urgently.
For what is it most appropriate for the technology company to apply, to prevent this disclosure?
Select one alternative:
Summary judgment.
Permission to issue proceedings without complying with the practice direction on pre-action conduct.
A final prohibitory injunction.
An early (expedited) trial date.
An interim prohibitory injunction.
An interim prohibitory injunction.
This question tested your knowledge and understanding of the purpose of interim prohibitory injunctions. This was covered in the element ‘Interim injunctions’ in the topic ‘Interim remedies’. An interim prohibitory injunction is an order preventing a party from doing a stated act pending determination of the dispute at trial. It is the best application on the facts stated. Summary judgment is likely to take longer, and these facts suggested the utmost urgency. A final prohibitory injunction might be awarded at trial, but that is much too late – the damage will likely be done by then. An early expedited trial date is a good idea, and this might be ordered alongside an interim prohibitory injunction, but even an early trial will be months away, which is too far on these facts. The court’s permission is not required in order to issue proceedings without complying with the practice direction on pre-action conduct – a party simply needs to assess for itself the risks of that course of action. On these facts, it seems entirely justified.
A driver carelessly hits a pedestrian when mounting the pavement during a manoeuvre. The claimant brings a personal injury claim against the defendant. The defendant knows he was at fault and does not wish to dispute this but is surprised by the extent of the injuries allegedly suffered by the claimant and is not convinced that they are as extensive as alleged.
How should the defendant respond to the paragraph of the particulars of claim which states the extent of the claimant’s injuries caused by the defendant’s negligence?
Select one alternative:
Require proof of the extent of the injuries allegedly caused by the defendant’s negligence.
Deny the extent of the injuries allegedly caused by the defendant’s negligence.
Admit the extent of the injuries caused by the defendant’s negligence.
Require proof of the extent of the injuries allegedly caused by the defendant’s negligence and state that the injuries are inconsistent with the accident caused by the defendant.
Deny the extent of the injuries allegedly caused by the defendant’s negligence and state that the injuries are inconsistent with the accident caused by the defendant.
Require proof of the extent of the injuries allegedly caused by the defendant’s negligence.
This question tested your understanding of how to draft a defence. This was covered in the element ‘Defences’ in the topic ‘Statements of case’.
Correct. It is appropriate to require proof of this paragraph because the defendant is unable to admit or deny the allegation. The driver has insufficient information to do. When requiring proof, it is not necessary (and rarely appropriate) to give reasons / an alternative version of events. It would be wrong to deny the extent of the injuries as the facts are not within the defendant’s knowledge. It would be wrong to admit the allegations because the defendant does not know them to be true and it would be harmful to the defendant’s case.
–
Incorrect. It would be wrong to deny the extent of the injuries as the facts are not within the defendant’s knowledge.
A clothing manufacturer brings a breach of contract claim against a distributor, claiming £45,000. The claim has been provisionally allocated to the multi-track, and a case management conference has been listed to take place in 3 weeks’ time.
What should each party do in relation to disclosure in advance of the case management conference?
Select one alternative:
File draft directions at court.
File and serve a disclosure report including a proposal for disclosure and then seek to agree a proposal for disclosure.
Seek to agree a proposal for disclosure before the case management conference, and if a proposal is agreed, should file and serve a disclosure report including a proposal for disclosure.
File and serve draft directions and then seek to agree a proposal for disclosure.
Discuss whether to depart from the usual order which is for standard disclosure, and if so, file directions to that effect.
File and serve a disclosure report including a proposal for disclosure and then seek to agree a proposal for disclosure.
This question tested your knowledge and understanding of the early case management procedure on the multi-track, in particular in relation to guiding the parties to an appropriate disclosure order at the case management conference. This was covered in the element ‘Early case management on the multi-track’ in the topic ‘Case management’. You may also find the element ‘Sources and types of disclosure obligation’ in the topic ‘Disclosure and inspection’ useful. The procedure to be followed in relation to disclosure in advance of a case management conference on the multi-track (unless the proceedings include a claim for personal injuries) is that the parties need to file a disclosure report not less than 14 days before the case management conference and discuss and seek to agree a proposal in relation to disclosure not less than 7 days before the case management conference (CPR 31.5(3) – (8)).
The claimant in a £2,500,000 damages claim was due to file and exchange its costs budget (Precedent H) by 4.30pm on Monday 15 June. Solicitors for the claimant served and filed this on Tuesday 16 June at 1.30pm. The reason for the delay was that the claimant’s original expert witness became incapacitated, necessitating the claimant finding a last minute suitably qualified replacement.
Solicitors for the defendant have indicated that they do not consent to the late service and filing of the claimant’s precedent H and will expect the usual sanction to apply.
What advice should you give to the claimant about any application required in relation to its budget?
Select one alternative:
The appropriate application is for relief against sanction. This application is unlikely to be successful.
The appropriate application is for an extension of time for exchange and filing of the Precedent H. This application is likely to be successful.
The appropriate application is for an extension of time for exchange and filing of the Precedent H. This application is likely to be unsuccessful.
The appropriate application is for relief against sanction. This application is likely to be successful.
No application by the claimant is required. The claimant should wait for the defendant to make an application to court for an order that the sanction will be applied, and oppose that application.
The appropriate application is for relief against sanction. This application is likely to be successful.
This question is about applying for relief from sanction having missed a deadline for filing. This was covered in the element ‘Costs management – further detail’ in the topic ‘Costs management’, and in the element ‘Case management powers, sanctions and relief’ in the topic ‘Case management’. Unless otherwise ordered by the court, in this situation the usual sanction will apply (CPR 3.14). The effect of this is severe (no costs allowed for the claimant), so the claimant certainly needs to try to avoid this happening by making an application for relief. As the breach is not serious (a matter of hours late) or significant (no hearing date will be put at risk and the subsequent budget discussions and report (Precedent R) will be able take place as planned), under the Denton principles, the relief should be granted at the first stage of the test derived from this judgment. Should the court not accept this at the first stage and move on to the remaining stages of the Denton test, the reason for the delay is a good one, the value of the claim is significant and the disruption to the litigation minimal, so the court should still grant relief. The automatic sanction means that simply applying for an extension of time is not appropriate.
A retail company wishes to bring a claim against one of its suppliers for breach of contract. The retail company intends to claim £105,000 damages and £5,000 interest. It considers the claim to be straightforward. Limited witness evidence will be required, and there are no issues that require expert evidence.
What is the best advice for the retail company as to which court it should start the claim in?
Select one alternative:
The retail company should seek guidance from the High Court as to whether it will accept the claim.
The retail company must bring the claim in the County Court.
The retail company must bring the claim in the High Court.
The retail company can choose to bring the claim in the High Court or the County Court, but the High Court is more appropriate.
The retail company can choose to bring the claim in the High Court or the County Court, but the County Court is more appropriate.
The retail company can choose to bring the claim in the High Court or the County Court, but the County Court is more appropriate.
This question required you to understand the jurisdiction of the County Court and High Court and how to approach the matter when both courts have jurisdiction. This is covered in the element ‘Where and how to issue the claim’ in the topic ‘Commencing and serving proceedings’.
Correct. The value of the claim is above the threshold for High Court claims, ie it is more than £100,000 (CPR 7A PD 2.1). This means that the retail company has a choice whether to start the claim in the County Court or the High Court. It is not forced to go to the High Court because the value of the claim is above the threshold. In making that choice the relevant factors provided for in the rules (7A PD 2.4) should be considered and applied to the facts. As the financial value of the claim is only slightly above the threshold for the High Court and the claim does not appear to be complex, it is more appropriate to commence the claim in the County Court and not the High Court since it is not necessary for it to be dealt with by a High Court Judge. The retail company should make this assessment and should not seek guidance from the High Court.
A software company wishes to defend proceedings brought by a customer in negligence. It filed an acknowledgment of service and then also agreed an extension of 21 days for filing and serving the defence. It needs a further 14 days in order to finalise the defence.
What is the most appropriate next step for the software company to take?
Select one alternative:
Write to the building company seeking its approval to a further 14-day extension of time and then, assuming approval is given, notify the court of the extension.
File and serve the draft defence within the time period originally agreed (because it is not possible to obtain a further 14-day extension of time), and file and serve the final defence as soon as possible after that.
Make an application to the court for a further 14-day extension of time (and ask the claimant to consent to that application).
File its defence within the time period originally agreed (because it is not possible to obtain a further 14-day extension of time) and apply to amend it later if necessary.
File its defence when it has completed it and, if this is outside the time period required by the CPR, make an application to the court for relief from sanctions.
Make an application to the court for a further 14-day extension of time (and ask the claimant to consent to that application).
This question tested your understanding of the power of the parties to agree extensions of time for filing and serving a defence, and the court’s power to grant such extensions. This was covered in the element ‘Acknowledging and defending the claim’ in the topic ‘Responding to proceedings’. The parties can agree an extension of time for filing and serving the defence of 28 days, but beyond this, an application to court is required, even if the parties agree. The period required in this case is 35 days, so an application is required. Assuming that approach is followed, there is no need to file and serve a defence in haste (which is likely to require later amendment) nor to apply for relief from sanctions. Apart from it being unwise to file and serve a draft of any document (in case it reveals something that is later regretted), serving a draft and then a revised document later is not permitted.
A steel worker has issued and served proceedings against their employer alleging negligence. The steel worker is claiming £65,000 in relation to personal injuries. The employer denies entirely that it was negligent. The dispute is finely balanced. The claim is at the case management stage. The claimant needs a different car to be able to maintain mobility in light of their injuries but cannot afford to change cars. The cost of making the change would be much less than £65,000.
Does an application for an interim payment by the claimant have good prospects of success?
Select one alternative:
Yes, because the necessary conditions for the court to order an interim payment are made out and therefore the claimant is entitled to an interim payment.
No, because although the necessary conditions for the court to order an interim payment are made out, the court is unlikely to exercise its discretion in favour of ordering this because the application has been made too late.
Yes, because the necessary conditions for the court to order an interim payment are made out and the court is likely to exercise its discretion in favour of ordering this.
No, because although the necessary conditions for the court to order an interim payment are made out, the court is unlikely to exercise its discretion in favour of ordering this because the claim is too low in value.
No, because the necessary conditions for the court to order an interim payment are not made out.
No, because the necessary conditions for the court to order an interim payment are not made out.
This question tested your knowledge and understanding of the conditions that need to be satisfied before the court has a discretion to order an interim payment (CPR 25.7). This was covered in the element ‘Interim payments’, in the topic ‘Interim remedies’. If one of several conditions is satisfied, then the court has a discretion to order an interim payment. None of the conditions apply on these facts, and therefore the court has no option to order an interim payment. The court would have a discretion to order an interim payment only if one of these conditions was satisfied. The timing of the application would not be fatal if one of the necessary conditions was satisfied, although it would be a relevant consideration. The claim is not too low value for an interim payment.
A homeowner has issued and served the claim form and particulars of claim in relation to defective building works carried out 2 months ago at the homeowner’s home. The two defendants are a plumber and an electrician, and each is alleged to have negligently contributed to the defects. The claimant wishes to amend the particulars of claim to correct small errors in the way the defective electrical works are described.
From whom does the homeowner require permission or consent to make this amendment?
Select one alternative:
From the electrician and the plumber.
From the court.
From the court, the electrician and the plumber.
From either the court or the electrician.
From either the court, or from both the electrician and the plumber.
From either the court, or from both the electrician and the plumber.
This question tested your understanding of amendments to statements of case (CPR 17), in particular where there are no changes to parties or causes of action, and no limitation issues. This was covered in the element ‘Amending statements of case and changing parties’ in the topic ‘Statements of case’. If his statement of case has been served, a party may amend it only – (a) with the written consent of all the other parties; or (b) with the permission of the court (CPR 17.1(2)). The proposed amendment is to the particulars of claim, and these have already been served. Accordingly, either the written consent of all parties, or the permission of the court, is required – but not both. Note the reference to ALL parties (ie plumber and electrician), not just the party who seems to be affected by the amendments.
A defendant to a personal injury claim considers that certain paragraphs of the particulars of claim are impossible to understand. The paragraphs concerned explain adaptations allegedly required to the claimant’s house as a result of the claimant’s injuries, the costs of which are being claimed in the proceedings. The explanations are in very technical language and full of abbreviations. The defendant has not yet filed a defence.
What action, if any, should the defendant take in relation to these paragraphs / the issues raised in these paragraphs specifically?
Select one alternative:
Serve a request for further information (and apply to court for this if necessary).
Request disclosure in relation to the adaptations when the proceedings reach the disclosure stage (and apply to court at that stage, if necessary).
Apply for summary judgment (unless the claimant will concede this).
Apply for strike out (unless the claimant will concede this).
Request disclosure of documents evidencing the adaptations now (and apply to court for this if necessary).
Serve a request for further information (and apply to court for this if necessary).
This question required you to understand requests for further information (CPR 18) and to understand the limitations of applying for strike out of proceedings, summary judgment or disclosure. This was covered primarily in the element ‘Requests for further information’ in the topic ‘Statements of case’.
Correct. The court has power to order a party to clarify any matter in dispute or provide additional information in relation to any such matter (CPR 18). The defendant will not be able to prepare its defence without understanding the particulars. A request for further information is the best way to arrive at a position of understanding –receiving disclosure now is not necessary to achieve this end and is likely to be disproportionately costly. Waiting until the disclosure stage in the proceedings is too late. Applying for summary judgment or strike out could be considered if the claimant is unable or unwilling to clarify its statement of case, but should not be the starting point, because again, they are disproportionate mechanisms.
A technology firm entered into a contract with Supplier A under which Supplier A agreed to deliver a consignment of computer chips on 22 April 2020. In breach of contract Supplier A did not deliver the computer chips. On 29 April 2020 the technology firm entered into a contract with Supplier B to provide similar computer chips at twice the price agreed with Supplier A. The technology firm intends to bring a claim against Supplier A for breach of contract.
What is the latest date the technology firm can bring the claim against Supplier A for breach of contract?
Select one alternative:
29 April 2026
22 April 2023
22 April 2026
28 April 2023
21 April 2026
22 April 2026
This question tested your knowledge of, and ability to apply, the key provisions on limitation (Limitation Act 1980), in particular in relation to a contractual claim. This was covered in the element ‘Limitation’ in the topic ‘Pre-action considerations and conduct’.
Correct. In contract claims, the limitation period is 6 years from the date of the breach of contract, which in this case was the date the consignment of computer chips should have been delivered (22 April). Time starts running for limitation purposes from the day after the breach, hence the deadline is 22 April 2026 and not 21 April 2026.
20
A logistics company claims a debt of £45,000 from a supermarket for delivery services which have not been paid for. The supermarket is defending the entire claim on the basis that payment is not yet due. It also pleads a set-off of £11,000 in a defence and counterclaim, alleging that it has suffered losses in that sum as a result of the deliveries being late, in breach of contract.
If the defendant succeeds in all aspects of its defence and counterclaim, what is the amount of the judgment?
Select one alternative:
Claimant pays the defendant £56,000.
Neither party pays the other.
Defendant pays the claimant £34,000
Claimant pays the defendant £11,000.
Answered and correct
Claimant pays the defendant £11,000 and the defendant pays the claimant £34,000.
This question tested your understanding of the effect of a set-off and counterclaim. This was covered in the element ‘Statements of case – counterclaims and other possible statements of case’ in the topic ‘Statements of case’. The claimant claims £45,000. The defendant defends this on the basis that payment is not yet due. You are told that its defence succeeds in full. Therefore this claim fails. The defendant has its own claim for £11,000, for damages for breach of contract. This claim succeeds, so the claimant is ordered to pay the defendant £11,000. So the overall effect is that the claimant must pay the defendant £11,000. The set-off would be relevant if the primary defence (payment is not yet due) did not succeed in full, because then this additional defence might be relied on to reduce the claimant’s claim. But on these facts, it is not relevant.
A claimant company has made a without notice application for an interim prohibitory injunction to prevent a former employee from disclosing confidential information in breach of her employment contract. The claimant’s solicitors are aware of a reported case which is likely to have a material and unhelpful effect on the outcome of the claimant’s application.
Should the claimant’s legal representative draw the court’s attention to the unhelpful case?
Select one alternative:
No, because it is not in the claimant’s best interests to do so.
Yes, because the application is for an injunction.
Yes, because the application is made without notice.
Yes, because the representative is obliged to draw the court’s attention to relevant cases.
No, because the defendant can draw the court’s attention to the case at a future hearing.
Yes, because the representative is obliged to draw the court’s attention to relevant cases.
Pursuant to Rule 2.7 of the Code of Conduct, a solicitor must draw the court’s attention to relevant cases which are likely to have a material effect on the outcome of the proceedings. This applies even though this might not be in the client’s best interests. Accordingly, the claimant’s legal representative must draw the court’s attention to the unhelpful case. This is true whether or not an application is without notice and whether or not it relates to an injunction, albeit in practice compliance with this duty may require more careful attention in the case of an application without notice for an injunction than in relation to many other types of application. It cannot simply be left to the defendant to draw the relevant case to the court’s attention.
A breach of contract claim for £450,000 has reached the stage where the parties must give standard disclosure.
Does the defendant need to disclose and allow inspection of the letter of claim (the ‘Letter’) it received from the claimant’s solicitors?
Select one alternative:
The defendant must disclose the document but does not need to allow inspection of the Letter because the claimant will have a copy of it.
The defendant must disclose the document but does not need to allow inspection of the Letter because it is privileged.
The defendant does not need to disclose or allow inspection of the Letter because the claimant / claimant’s representatives authored this document.
The defendant must disclose and allow inspection of the Letter.
The defendant does not need to disclose or allow inspection of the Letter because the claimant will have a copy of it.
The defendant must disclose and allow inspection of the Letter.
The Letter of Claim would fall within the scope of standard disclosure as it is adverse to the defendant’s claim (since it sets out the allegations against it) and supports the claimant’s case as it demonstrates compliance with the Practice Direction on Pre- Action conduct. As the document is an open document (in its final, sent form) it would not fall within the scope of any privilege and as such must be made available for inspection. The fact that the claimant authored the document and has a copy is not relevant to the defendant’s obligations in relation to disclosure and inspection (you would hope in practice, however, that the claimant would not ask to inspect a document which it has a copy of).
An Italian individual has just been served with proceedings issued in the High Court of England and Wales in relation to a breach of contract claim. The individual does not believe that the courts of England and Wales have jurisdiction to determine the claim, and on that basis wishes to prevent the proceedings from continuing.
Which of the following is the best course of action for the individual to take?
Select one alternative:
File a defence setting out the basis on which jurisdiction is disputed.
Take no step in the proceedings.
File an acknowledgment of service and then apply for summary judgment.
File an acknowledgement of service and then apply to court disputing the court’s jurisdiction.
Apply to strike out the claim on the basis that it is an abuse of process.
File an acknowledgement of service and then apply to court disputing the court’s jurisdiction.
If a defendant wishes to dispute jurisdiction, the defendant must first file an acknowledgement of service (CPR 11(2)) – there is a box on the acknowledgement of service to indicate that the defendant intends to contest jurisdiction. The defendant must then apply within 14 days after filing the acknowledgment of service, disputing the court’s jurisdiction. That application must be supported by evidence. If the defendant does nothing, judgment in default may be entered against the defendant. Filing a defence would be engaging in the substance of the dispute and is likely to be considered to be submitting to the jurisdiction. Applying for summary judgment / applying for strike out are not the correct procedure.
A holidaymaker, normally resident in England, is on holiday in Spain when the holidaymaker’s negligent driving causes severe whiplash to an English businessperson. The English businessperson is in Spain for a short work visit. The businessperson wishes to bring a claim in negligence against the holidaymaker.
Assuming proceedings are brought appropriately in the courts of England and Wales, which country’s laws will apply to the dispute?
Select one alternative:
Spain’s laws, because the accident happened in Spain.
England’s laws, because both parties normally reside in England.
England’s laws, because that is where the defendant (the businessperson) resides.
Spain’s laws, because the whiplash was suffered in Spain.
England’s laws, because the proceedings have been brought in England.
England’s laws, because both parties normally reside in England.
This is a tortious matter in relation to which the claimant and defendant habitually reside in the same country. This points to that country’s laws applying to the dispute. The parties have not validly chosen any other law, the tort is not manifestly more closely connected with another country, and none of the ‘special regimes’ in the relevant regulation apply (Rome II Regulation).
A claimant driver is bringing a personal injury claim against a defendant driver following a road traffic accident. The claimant’s witness statement includes the following statement:
“The Defendant’s car was going very quickly”
Is this statement admissible in the proceedings?
Select one alternative:
This statement is inadmissible because it is not a statement of fact.
This statement is inadmissible because it is hearsay evidence.
This statement is inadmissible because it is a statement of opinion.
This statement is admissible because it is hearsay evidence contained in a witness statement.
This statement is admissible because it is a statement of perceived fact.
This statement is admissible because it is a statement of perceived fact.
The statement is a statement of opinion. Whilst the general rule is that opinion evidence is inadmissible in civil proceedings (other than by experts), there is an exception where someone makes a statement of opinion if made as a way of conveying relevant facts personally perceived by them and put forward as evidence of what was perceived. That applies in this case. The evidence is not hearsay evidence.
A catering company has issued proceedings alleging professional negligence on the part of the catering company’s accountants. The proceedings have been allocated to the multitrack. In their defence, the accountants deny negligence, and raise arguments in relation to the technicalities of accounting which had not been anticipated by the catering company. The catering company wishes to instruct an expert accountant to provide a view on the strength of the defendant accountants’ arguments (the ‘Intended Instructions’), in order that the catering company can decide how to proceed.
Which of the following is the best advice to give to the client as to its liberty to instruct an expert in this way?
Select one alternative:
The claim is allocated to the multi-track and this constitutes the court’s permission for the Intended Instructions.
The court’s permission is required for the Intended Instructions.
The court’s permission is not required for the Intended Instructions if the catering company is prepared to disclose the expert’s advice.
The court’s permission is not required for the Intended Instructions.
The court’s permission is not required for the Intended Instructions if the parties agree on an expert, otherwise it is required.
The court’s permission is not required for the Intended Instructions.
A common misconception is that the court’s permission is required to instruct an expert witness whereas, in fact, a party may instruct as many experts as it likes. For this reason, the court’s permission is not needed for the Intended Instructions. The court’s permission is needed, however, to call an expert or rely upon a written expert’s report at trial (CPR 35.4(1)).
An English company based in London supplies noise insulation services to restaurants. It has a dispute regarding non-payment of an invoice sent to a sole trader who is an individual domiciled in Italy. The invoice relates to services supplied in relation to a restaurant in Manchester. The written contract between the English company and the individual has an exclusive jurisdiction clause stipulating that all disputes must be heard in the courts of Italy.
In which courts must the dispute be heard?
Select one alternative:
English courts, because the matter concerns land in England.
Italian courts, because of the domicile of the individual.
Either the English or Italian courts.
Italian courts, because of the exclusive jurisdiction clause.
English courts, because of the domicile of the English company.
Italian courts, because of the exclusive jurisdiction clause.
This is a clause relating to a civil / commercial matter, in a written contract, granting jurisdiction exclusively to a state contracted to the Hague Convention. The dispute is not of a type excluded from the Hague Convention. Accordingly, the exclusive jurisdiction clause is effective, and proceedings must be brought in Italy. In these circumstances, the fact that the defendant is domiciled in Italy is not really relevant.
A claimant in a professional negligence claim has been advised that it might be unsuccessful at trial due to the real possibility that the court determines a pivotal point of law against the claimant. After being properly advised, the claimant instructs that if this does indeed happen, it wishes to appeal. On the day of trial, the judge gives judgment for the defendant due to determining the point of law against the claimant, and states that if a party wishes to appeal the decision then they must apply for permission to do so within 14 days.
When would be the best time for the claimant to apply for permission to appeal?
Select one alternative:
As soon as reasonably practicable.
Within 21 days of the court’s decision.
On the day of the trial.
Within the time period set by the court.
Within a later period of time as ordered by the court after an application to extend the time for filing an appeal notice.
On the day of the trial.
While the other answers are plausible, they are not necessarily the quickest route to appeal. Applying on the day of trial to the trial judge is the best answer because this would save time and means that the claimant does not have to wait longer than necessary. In the event that this is unsuccessful, the claimant is still permitted to apply again for permission to the appellate court within the time period set by the court, so has lost nothing.
In a civil dispute, a claimant makes a Part 36 offer in the sum of £90,000 to the defendant 3 months before trial. The defendant replies the same week with a Part 36 offer to pay £45,000. Neither party accepts the other party’s offer. At trial, the claimant obtains a judgment against the defendant for £70,000.
What is the court most likely to order in relation to costs?
Select one alternative:
The claimant will pay the defendant’s costs until the expiry of the relevant period of the defendant’s offer, and the defendant will pay the claimant’s costs after this point.
The defendant will pay the claimant’s costs until the expiry of the relevant period of the defendant’s offer, and the defendant will pay the claimant’s costs with interest after this point.
The defendant to pay the claimant’s costs of the claim.
The defendant will pay the claimant’s costs until the expiry of the relevant period of the claimant’s offer, and the claimant will pay the defendant’s costs after this point.
The claimant to pay the defendant’s costs of the claim.
The defendant to pay the claimant’s costs of the claim.
Part 36 has no consequences in these circumstances – in the broadest of terms, neither party has done the same as, or better than, it offered (CPR 36.17). Accordingly the general rule in relation to costs applies – the unsuccessful party should pay the costs of the successful party (CPR 44.2). The claimant is the successful party – it received a substantial award at trial.
Paragraph 1.4 of the Solicitor’s Code of Conduct provides that a solicitor should not mislead or attempt to mislead clients, the court or others, either by the solicitor’s own acts or omissions or allowing or being complicit in the acts or omissions of others (including the client). By continuing to represent the client, the solicitor would be complicit in the client misleading the court and the defendant. The solicitor must therefore cease to act. It is not permissible to disclose the situation to the Court or to the defendant (unless the claimant permits this). This would be a breach of confidence. There is no option to apply to court to retract the claimant’s witness statement, and in any event, this would not necessarily ‘cure’ the misleading impression already created by the claimant. Furthermore, the claimant has not instructed / permitted its solicitor to do this. There is no need to apply to court for guidance.
A civil dispute is approaching trial. Upon reviewing documentation not available to the other party or the court, the claimant’s solicitor realises that the claimant has said something untruthful in their witness statement. The witness statement is included in the trial bundles filed at court. The claimant’s solicitor raises this with the claimant, who refuses to correct it or identify the untruthful part to the defendant or the court.
Which of the following is the most appropriate course of action for the claimant’s solicitor to take?
Select one alternative:
Apply to court to retract the claimant’s witness statement.
Apply to court for guidance as to what to do next.
Disclose the situation to the Court.
Take steps to cease acting for the claimant.
Disclose the situation to the defendant.
Take steps to cease acting for the claimant.
Paragraph 1.4 of the Solicitor’s Code of Conduct provides that a solicitor should not mislead or attempt to mislead clients, the court or others, either by the solicitor’s own acts or omissions or allowing or being complicit in the acts or omissions of others (including the client). By continuing to represent the client, the solicitor would be complicit in the client misleading the court and the defendant. The solicitor must therefore cease to act. It is not permissible to disclose the situation to the Court or to the defendant (unless the claimant permits this). This would be a breach of confidence. There is no option to apply to court to retract the claimant’s witness statement, and in any event, this would not necessarily ‘cure’ the misleading impression already created by the claimant. Furthermore, the claimant has not instructed / permitted its solicitor to do this. There is no need to apply to court for guidance.
A claimant is bringing a breach of contract claim against a defendant seeking £400,000. After exchange of witness evidence, the defendant serves on the claimant a Part 36 offer to settle in the sum of £300,000. The claimant rejects this offer and the case proceeds to trial where the claimant is awarded £290,000.
Which of the following statements best describes the likely order in relation to costs?
Select one alternative:
The claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this.
The defendant will pay the claimant’s costs (for the entire claim).
The defendant will pay the claimant’s costs from the expiry of the relevant period until trial, and the claimant will pay the defendant’s costs prior to this.
The claimant will pay the defendant’s costs (for the entire claim), plus interest on those costs from the expiry of the relevant period until trial.
The claimant will pay the defendant’s costs (for the entire claim).
The claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this.
Correct. This is a Defendant’s offer. The claimant has failed to obtain a result more advantageous than the offer (CPR 36.17(1)(a)). It is likely that a split costs order under CPR 36.17(3) will apply where the claimant will get its costs from the defendant up to the date on which the relevant period expires and the defendant will get its costs thereafter, although the court can make a different order if this split costs order would be unjust. It is not correct to say ‘the claimant will pay the defendant’s costs (for the entire claim), plus interest on those costs from the expiry of the relevant period until trial’ because the likely order is costs FROM the date on which the relevant period expired (and interest on those costs) unless unjust.
A farmer is bringing a claim in nuisance against a manufacturer. The parties have carried out standard disclosure and witness statements are due to be exchanged tomorrow. The manufacturer realises that one of its witness statements refers to a document which has not previously been disclosed.
Which of the following is the best course of action for the manufacturer to take?
Select one alternative:
Establish if the document is disclosable, and if it is, no further action is required.
Establish if the document is disclosable, and if it is, give notice of that fact when exchanging witness statements.
Establish if the document is privileged, and if it is not, serve a supplemental list of documents.
Establish if the document is disclosable, and if it is, it should be disclosed to the farmer immediately.
Establish whether disclosure of the document is desirable, and if it is not, remove reference to the document from the witness statement.
Establish if the document is disclosable, and if it is, it should be disclosed to the farmer immediately.
The duty of disclosure is an ongoing duty (CPR 31.11). Upon finding a document which might be disclosable and which has not been disclosed, a party needs to consider whether it should be disclosed. If it should be disclosed, this should be done immediately – doing nothing or waiting for exchange of witness statements is inadequate. If it should be disclosed, then removing reference to it from the witness statement does not change the fact that it should be disclosed. Even if the document is privileged, it still needs to be disclosed: privilege provides a ground for refusing inspection, not disclosure.
In a negligence action, the High Court Judge hearing the trial gives judgment in favour of the Claimant. The Defendant considers that the judge misunderstood the relevant law and that the judge’s decision was wrong. The judge has refused the Defendant permission to appeal the decision.
What is the best advice for the Defendant if the Defendant still wishes to pursue an appeal?
Select one alternative:
The Defendant should request permission to appeal from the Court of Appeal.
The Defendant should request permission to appeal from a High Court Judge.
The Defendant should request permission to appeal from a Circuit Judge.
It is not possible to pursue an appeal further because the decision to be appealed was made by a High Court Judge.
It is not possible to pursue an appeal further because permission has been refused by a High Court Judge.
The Defendant should request permission to appeal from the Court of Appeal.
An application for permission to appeal may be made— (a) to the lower court at the hearing at which the decision to be appealed was made (in this case the High Court – that request has already been made and refused); or (b) to the appeal court in an appeal notice (in this case the Court of Appeal). (CPR 52.3(2) and 52A PD 3.5). Option (b) should therefore now be pursued. For the above reasons, it is wrong to say that it is not possible to pursue an appeal.
A chemical engineering company and a pharmaceutical company are entering into a contract in relation to a new business relationship which they hope will continue for several years. The intended business is highly confidential and has the potential to be extremely lucrative for both parties. The parties are currently on good terms and cannot envisage any disputes arising. The companies are considering including an arbitration clause in their contract.
Which of the following is the most compelling advantage of arbitration over litigation for these parties?
Select one alternative:
Arbitration will lead to a binding decision.
Arbitration is quicker.
Arbitration is confidential.
Arbitration is less expensive.
The parties can choose the arbitrator.
Arbitration is confidential.
Confidentiality is clearly important to the parties. An arbitration is confidential, litigation generally is not. This is a compelling advantage of arbitration over litigation for these parties. It is not true that arbitration is necessarily quicker and less expensive than litigation, and the facts do not suggest that these are the most significant immediate concerns for the parties. It is true that parties can choose an arbitrator (but cannot choose their judge), but the facts do not suggest this would be a significant advantage for the parties. It is true that arbitration will lead to a binding decision, but so will litigation – so this is not an advantage of arbitration compared to litigation.
An employee is suing their employer for negligence following an accident at work. The employer’s solicitors instructed an orthopaedic medical expert to prepare a report on the employee’s injuries and the consequent effect on the employee’s life. The expert’s report commented on areas outside of their area in a way very much favourable to the employee.
Which of the following best explains why the employer can refuse to allow inspection of this report in the event that an order for standard disclosure is made?
Select one alternative:
The report attracts legal advice privilege.
The report is a form of expert evidence.
The report attracts without prejudice privilege.
There will no obligation to disclose the report, and therefore no obligation to allow inspection of it.
The report attracts litigation privilege.
The report attracts litigation privilege.
Litigation Privilege covers confidential communications between a lawyer and client or between one of them and a third party where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of the litigation which was at the time reasonably in prospect. In this scenario, the expert report is a confidential communication between the solicitor and a third party (the expert) produced for the sole purpose of advising the employer about the employee’s injuries for the purpose of litigation already started. Legal advice privilege only covers confidential communications between a lawyer and their client – this report is not such a communication. The expert report is not a genuine attempt to settle, so cannot attract without prejudice privilege. The expert report is not ‘expert evidence’ until such time as it is deployed as such – and the employer does not want to use it as expert evidence. It would be wrong to say that there would be no obligation to disclose the expert report: it is a document, in the control of the employer, which is adverse to the employer’s case and supportive of the employee’s case, and so must be disclosed (but not, for the reasons given above, inspected).
A trial is due to start on Monday 28 November and the trial bundles need to be filed with the court. There are no bank holidays in the three weeks preceding Monday 28 November.
What is the latest date by which the trial bundles must be lodged with the court?
Select one alternative:
Wednesday 23 November.
Monday 21 November.
Tuesday 22 November.
Monday 14 November.
Thursday 24 November.
Tuesday 22 November.
The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial (CPR 39.5(2)). There must be a clear day at the beginning and at the end of the period - the trial is an event which means that day does not count when counting – it must be a clear day. (CPR 2.8). To work out the last day (‘not less than 3 days before the start of the trial’), one excludes weekends (CPR 2.8(4)). This means Tuesday 22 November is the last date. Day one is Wednesday 23 November, day two is Thursday 24 November and day three is Friday 25 November. You may find it easier to count backwards from the trial.
A publisher notices that a bookshop in Manchester is selling books which infringe copyright owned by the publisher. The publisher is considering bringing proceedings against the manufacturer of the books (which is not the bookshop). The publisher does not know who this is. However, the owner of a bookshop based in Birmingham, which has not been involved with the infringing books, has by email indicated that it does know who the manufacturer is.
Which of the following is the most likely reason for the failure of an application by the publisher for the Birmingham bookshop to disclose the identity of the manufacturer?
Select one alternative:
The application is not necessary in order for the Birmingham bookshop to bring proceedings.
Proceedings have not yet been issued against the manufacturer.
There is no evidence that the identity of the manufacturer is recorded in a document.
The application is not proportionate.
The bookshop based in Birmingham is not sufficiently involved in the copyright infringement.
The bookshop based in Birmingham is not sufficiently involved in the copyright infringement.
An application pre-action against a ‘non-party’ in order to identify the identity of the intended defendant is an application for a Norwich Pharmacal order. There are three conditions that must be satisfied for the court to exercise the power to order Norwich Pharmacal relief. They are: - a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer - here there is copyright infringement; - there must be the need for an order to enable action to be brought against the ultimate wrongdoer – this appears to be satisfied, and it is not clear that there is any other way to obtain the information - the person against whom the order is sought must (i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and (ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued. On point (i), the applicant is likely to struggle – there is no evidence of involvement on the part of the Birmingham bookshop, it appears to be just a witness. Accordingly, the application is likely to fail because the bookshop based in Birmingham is not sufficiently involved in the copyright infringement. Putting this issue on one side, it appears the application would be justified as both necessary and proportionate. It is true that there is no evidence that the identity of the manufacturer is recorded in a document, but a Norwich Pharmacal order can require the respondent to provide information, not only disclose documents.
You act for a food wholesaler in a breach of contract dispute with a food retailer, the court has ordered standard disclosure and both parties have carried out the requisite searches, prepared and served disclosure lists and carried out inspection. An email (the ‘Email’) then comes to the wholesaler’s attention which is adverse to its position which falls within the scope of the wholesaler’s disclosure obligation. The wholesaler was unaware of the Email at the time disclosure lists were served through no fault of the wholesaler. The wholesaler indicates to you that in no circumstances will it notify the other party of the Email, or disclose it.
What course of action should you take if the wholesaler maintains this position regardless of your advice?
Select one alternative:
You should cease to act.
Answered and correct
You are not required to take any further action.
You should apply to court for permission to disclose the Email.
You should notify the court of the Email.
You should notify the retailer of the Email.
You should cease to act.
In failing to disclose the document, the wholesaler is failing to comply with a disclosure obligation and is also misleading the court and the opponent. Pursuant to Rule 1.4 of the Code of Conduct, you cannot be complicit in the actions of others that mislead the court. You will therefore need to cease to act. You cannot notify the court or the retailer of the email (whether by an application to court or otherwise) as this would be to breach the obligation of confidentiality owed to the wholesaler.
A distributor wishes to bring proceedings against a manufacturer based in Chile (South America). The claim is issued on 10 March 2022. On 15 March 2022 the distributor applies for permission to serve the proceedings in Chile. On 8 June 2022, permission is granted to serve the proceedings on the manufacturer in Chile.
By which date must the proceedings be served?
Select one alternative:
15 September 2022.
8 December 2022.
15 July 2022.
10 September 2022.
8 October 2022.
10 September 2022.
Where the claim form is to be served out of the jurisdiction, the claim form must be served within 6 months of the date of issue. The claim form was issued on 10 March and therefore must be served by 10 September 2022. The date on which the claimant applied for permission to serve out of the jurisdiction is not relevant. Nor is the date on which such permission was granted.
A claimant makes a Part 36 offer to a defendant by letter (the ‘Letter’). The offer is not accepted. In the Letter, the claimant sets out an analysis of the strengths and weaknesses of the claim to justify the offer being made. The claim reaches trial. The defendant wishes to show the Letter to the judge who will determine the claim.
Is the defendant permitted to show the Letter to the judge who will determine the claim?
Select one alternative:
Yes, because the Letter is correspondence between the parties.
Yes, because the Letter is conveying a Part 36 offer.
No, because the Letter was written in relation to the litigation.
Yes, because the Letter is not confidential as between the parties.
No, because the Letter is conveying a Part 36 offer.
No, because the Letter is conveying a Part 36 offer.
A Part 36 offer is treated as ‘without prejudice except as to costs’ and the fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided (CPR 36.16(1) and (2)). Even if this was not specifically provided for in the CPR, a Part 36 offer would almost always be a genuine attempt to settle, and therefore would attract without prejudice privilege, and could not be shown to the trial judge. The fact that the letter was written in relation to the litigation does not mean it cannot be shown to the trial judge – open correspondence between the parties could generally be shown to a trial judge. Given the provisions specifically relating to Part 36 offers and the fact that this would attract privilege as set out above, the fact that the letter is correspondence between the parties and not confidential as between the parties is not relevant.
A defendant in a breach of contract claim made a Part 36 offer for £70,000. The relevant period for that offer expired on 1 February, two months before trial. The claimant replied with its own Part 36 offer in the sum of £110,000. The relevant period for that offer expired on 1 March, one month before trial. No other offers were made. Neither offer was accepted and the matter went to trial. The court found in favour of the claimant and awarded the claimant the sum £95,000 (including a total of £1,000 in relation to interest).
On the information provided what would be the usual order for the Court to make in relation to costs?
Select one alternative:
The defendant to pay the claimant’s costs of the claim on the standard basis.
The claimant to pay the defendant’s costs of the claim on the standard basis.
The defendant to pay the claimant’s costs on the standard basis up to 1 February and then the claimant’s costs together with an additional sum and enhanced interest and costs from 1 March onwards.
The defendant to pay the claimant’s costs on the standard basis up to 1 February and then the claimant’s costs together with an additional sum and enhanced interest and costs from 1 February onwards.
The defendant to pay the claimant’s costs on the standard basis up to 1 February and then no order as to costs for the period from 1 March onwards.
The defendant to pay the claimant’s costs of the claim on the standard basis.
This question relates to ‘Part 36 and other offers’ and ‘inter partes costs orders (interim and final)’. In particular, this question is about the general rule in relation to costs and the costs consequences of Part 36 offers. Part 36 consequences apply where either: (a) a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer; or (b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer (CPR 36.17). Neither of these ‘triggers’ applies here – the judgment was more advantageous than the defendant’s offer, and not as advantageous as the claimant’s offer. In these circumstances, the ‘general rule’ in relation to costs applies – the unsuccessful party pays the costs of the successful party. The claimant is the successful party because the claim has been successful. The question asked what the ‘usual order’ would be, but in any event, there is nothing on the facts to justify departing from the general rule. The distractors are all wrong because they either misapply the general rule or they detail cost consequences set out in Part 36 but which do not apply on these facts for the reasons set out above.
Two neighbours are in a dispute concerning the boundary between their back gardens. Following a case management conference at which each party indicates an intention to mediate, the court stays the claim for one month to allow the parties to explore settlement. The parties subsequently mediate and agree terms of settlement. The settlement provides that each party will bear its own costs, the boundary between their back gardens will be as agreed at the mediation in a manner broadly favourable to the defendant, but in return the defendant agrees to transfer a strip of its front garden to the claimant.
How should the parties most appropriately record this agreement to give it legal effect?
Select one alternative:
The parties will need to file an order at court, and it can be a (non-Tomlin) consent order.
The parties will not need to file any order at court because the agreement was reached during a mediation.
The parties will not need to file any order at court because a settlement agreement will be sufficient.
The parties will not need to file any order at court because the agreement was reached during a stay of proceedings.
The parties will need to file an order at court, and it should be a Tomlin Order.
The parties will need to file an order at court, and it should be a Tomlin Order.
This question relates to ‘discontinuance and settlement’. In particular, this question is about recording a settlement reached at mediation where court proceedings have been issued. As court proceedings have been issued, those proceedings need to be concluded and some sort of court order is required. On these facts, a Tomlin Order is required, because the parties have agreed terms which go beyond the scope of the dispute, in particular redrawing the boundary to the front garden which was not part of the dispute.
The claimant in a professional neglience dispute is claiming £350,000. The claimant makes a Part 36 settlement offer, offering to accept £200,000 including interest. That offer specifies a period of 21 days, ending on 27 November, within which the defendant will be liable for the claimant’s costs if the offer is accepted. The offer says nothing about what happens or whether it can be accepted after 27 November. The defendant does not accept the offer by 27 November. On 10 December (4 months before trial), the defendant realises that the litigation is becoming so disruptive and time consuming that it would now be content to settle the dispute for £200,000, even if this means paying the claimant’s costs in addition to this sum.
Which of the following is the best course of action for the defendant to take?
Select one alternative:
Apply to court for relief from sanctions and for permission to accept the claimant’s Part 36 offer.
Make a Part 36 offer to settle the dispute for a payment of £200,000.
Serve a notice of acceptance in relation to the claimant’s Part 36 offer.
Apply to court for permission to accept the claimant’s Part 36 offer.
Ask the claimant to repeat its offer to settle.
Serve a notice of acceptance in relation to the claimant’s Part 36 offer.
This question relates to ‘Part 36 and other offers’. In particular, this question is about accepting a Part 36 offer after the expiry of the relevant period. In this scenario, the relevant period has expired, but there is no indication that the Part 36 offer has been withdrawn or that it was expressed to be automatically withdrawn at the end of the relevant period. In those circumstances, it can still be accepted (CPR 36.11(2)) by serving written notice of acceptance (CPR 36.11(1)). There is no need to make any sort of application to court. Making a Part 36 offer or asking the claimant to repeat its offer are more convoluted and will not necessarily result in a binding settlement if the claimant is not cooperative.
In a breach of contract claim the court has ordered the claimant and the defendant to file and serve a budget (precedent H) by no later than 21 days before the first case management conference. 14 days before the deadline, the defendant realises it will not be ready until one day after the deadline, when the contact at the client who is needed to approve the budget returns from sickness leave.
Which of the following courses of action should the defendant most appropriately pursue in the first instance?
Select one alternative:
Serve the budget by the deadline in its unsigned form.
Apply to court for an extension of time for serving the budget.
Notify the claimant that the budget will be served one day late.
Apply to court for relief from sanctions.
Ask the claimant to agree that the deadline for serving budgets be extended by a day.
Ask the claimant to agree that the deadline for serving budgets be extended by a day.
This question relates to ‘non-compliance with orders, sanctions and relief’. In this case, the defendant does not wish to comply with a court order – it wishes to extend the deadline for serving budgets by a day. The parties can agree to extend such a deadline by up to 28 days provided always that any such extension does not put at risk any hearing date. On the facts presented, there is no reason to think an extension of a single day will put the CMC or any other hearing at any risk. The defendant should therefore ask for such an extension. Applying for relief from sanctions is not necessary (no sanction has been imposed – the deadline has not yet arrived). Notifying the claimant that the budget will be served one day late achieves little: it does not extend the deadline or avoid a sanction being imposed upon the deadline being missed. Applying to court for an extension of time is possible, but if the claimant’s consent can be obtained, this is a more certain and much less costly way to proceed. It is not at all clear that serving a budget in an unsigned form would be sufficient to avoid the imposition of sanctions, even if it were possible to obtain instructions to do so.
A pharmaceutical company brings a claim against a chemical supplier seeking damages of £40,000 arising from the supplier’s alleged breach of contract in supplying chemicals which do not conform with the contractual specification. The claim raises issues of a technical nature and will require extensive expert evidence if it is to be resolved fairly.
In which of the following courts should the claim most appropriately be issued?
Select one alternative:
In the High Court, Chancery Division.
In the High Court, Queen’s Bench Division.
In the County Court.
In the High Court, Family Division.
In the Magistrates Court.
In the County Court.
This question relates to ‘allocation of business between the High Court and the county court’ and ‘jurisdiction of the specialist courts’. The claim in this question is not a personal injury claim. Such a claim may not be started in the High Court unless the value of the claim is more than £100,000 (or an enactment requires it to be issued in the High Court). The value of this claim is £40,000, and therefore it may not be started in the High Court and must be commenced in the County Court. The Magistrates Court has very limited civil jurisdiction, is generally only concerned with criminal matters, and would not be appropriate for this claim.
The claimant in an employer’s liability personal injury claim believes that, if the defendant discloses documents relevant to the issue of whether the defendant is liable for the claimant’s injuries, then the parties are likely to be able to reach a settlement without the need to exchange documentation in relation to the question of quantum. The claim has been allocated to the multi-track and a case management conference has been listed.
Which of the following is the best way for the claimant to manage disclosure in this way?
Select one alternative:
Request that the court order disclosure in relation to different issues in stages.
Request that the court orders a trial in relation to the issue of liability as a preliminary issue.
Request that the court order standard disclosure but withhold disclosure of documents relevant to quantum.
Request that the court dispenses with the need for disclosure and ask for the documentation relevant to liability as part of a settlement discussion.
Request that the court order standard disclosure and agree with the defendant to limit the search for documents to documents relevant to liability.
Request that the court order disclosure in relation to different issues in stages.
This question relates to ‘orders for disclosure’ and to a lesser extent ‘standard disclosure’ and ‘costs and case management conferences’. In particular, the question relates to the ways in which the court can control the disclosure process in accordance with the overriding objective. In this case, there are likely to be significant cost savings by carrying out disclosure in stages. The court has the power to order disclosure in stages and will consider doing so in a multi-track claim (CPR 31.5(7)). Requesting standard disclosure and then withholding documents relevant to quantum is likely to be a breach of a party’s disclosure obligations. Agreeing with the defendant to limit the search to documents relevant to liability may be permissible but is problematic – if the dispute does not settle as anticipated, what happens about disclosure of the documents relevant to quantum? Requesting the documentation only as part of a settlement discussion puts the control in the hands of the defendant, and again is problematic if the dispute does not settle. Trying the issue of liability as a preliminary issue is possible, but it is likely to be more costly than simply giving disclosure in relation to one issue at a time, and is not what the claimant wants.
A toy manufacturer is defending a product liability (personal injury) claim. The claimant alleges that the defendant failed to take the necessary precautions to adequately test the safety of the toy before sale. The defendant alleges that it did carry out tests, but the video records of those tests have been destroyed in the ordinary course of business.
Is it likely that the video records need to be disclosed?
Select one alternative:
Yes, because the videos relate to the subject matter of the dispute.
Yes, because the documents are likely to support the claimant’s case, be adverse to the defendant’s case, be adverse to the claimant’s case or be documents that the defendant wishes to rely on.
No, because the videos are no longer in the defendant’s control.
No, because the videos are not documents.
No, because the destruction of the videos was in ordinary course of business.
Yes, because the documents are likely to support the claimant’s case, be adverse to the defendant’s case, be adverse to the claimant’s case or be documents that the defendant wishes to rely on.
The videos must be disclosed because they are documents which are likely to support the claimant’s case, be adverse to the defendant’s case, be adverse to the claimant’s case or be documents that the defendant wishes to rely on, given that they shed light on the testing of the toys, and the testing of the toys is an important issue in dispute (CPR 31.6). The other answers are wrong because videos are documents (CPR 31.4), the disclosure obligation extends to documents that were (rather than are) in a party’s control (CPR 31.8), the fact that they were destroyed in the ordinary course of business is not relevant to whether they need to be disclosed, and the fact that they ‘relate to the subject matter of the dispute’ is not the same as the ‘test’ set out in CPR 31.6 and is therefore not correct.
The claimant in a partnership dispute is trying to enforce an unpaid judgment in the sum of £8,200 against the defendant, his former business partner.
The defendant recently lost his job as a tax adviser and now works in his father’s accountancy practice earning approximately £800 per month. The defendant is the sole owner of his own home with approximately £20,000 of equity in it, but owns no other property. He has £9,000 in a bank account, also in his sole name. He leases a car for £400 a month which would sell for approximately £12,000 on the open market. The claimant wants to force payment of the judgment sum in the near future.
Which one of the following is the most appropriate method of enforcement?
Select one alternative:
Apply to take control of the defendant’s car.
Apply for an attachment of earnings order over the money held by the bank.
Apply for a third party debt order over the defendant’s bank account.
Apply for an attachment to earnings order over the defendant’s earnings from his father’s practice.
Apply for a charging order over the defendant’s house.
Apply for a third party debt order over the defendant’s bank account.
Applying for a third party debt order over the defendant’s bank account is the best advice as it is the most suitable order on these facts. A bank account in credit is a debt due by the bank to its customer. There is enough in the account to meet the judgment debt. Obtaining a third party debt order in respect of that sum would realise the money owed securely and quickly (as it is paid directly to the judgment creditor) and would be fairly straightforward given that the third party is reliable. See generally CPR 72. The other options are wrong or less attractive. Money in the bank is not secured using an attachment of earnings order – this is simply the wrong method. Applying for a charging order is possible, but it unlikely to lead to payment in the near future – it certainly does not force this (payment is not forced until the property is sold). Applying for an attachment of earnings order is possible, but it would take a long time for the judgment sum to be paid, and the court may well refuse to order much to be paid this way. It is not possible to take effective control over the car given that it is only rented by the defendant, not owned.
A clothing manufacturer brings a breach of contract claim against a manufacturer of cotton for failure to deliver cotton on time in accordance with the contract. The defendant defends the claim on several bases including that the claimant could have purchased equivalent cotton elsewhere, in time, and at no extra cost, and therefore has suffered no recoverable loss. After the litigation has commenced, the claimant enters into a new contract (‘New Contract’) to purchase replacement cotton from a new supplier instead, at a greater cost. The claimant considers that the New Contract is adverse to the defendant’s case and intends to rely on it at trial. The claimant has not yet made the defendant aware of the New Contract.
Is the New Contract currently privileged from inspection?
Select one alternative:
Yes, because it satisfies the definition of litigation privilege.
No, because the claimant intends to rely on it.
No, because it does not satisfy any definition of privilege.
Yes, because it satisfies the definition of legal advice privilege.
Yes, because it is not currently referred to in any of the statements of case.
No, because it does not satisfy any definition of privilege.
This document does not satisfy any type of privilege, and for this reason is not privileged from inspection. The fact that it has been created after litigation was commenced does not mean that it attracts privilege. On the other hand, the fact that the claimant intends to rely on it would not cause it to lose privilege if it was otherwise privileged, although at some point the claimant would presumably need to waive privilege.
The claimant issues proceedings against the defendant. The claim form indicating that particulars of claim are to follow is placed in the post, first class, properly addressed to the defendant, on Monday 4 January. The particulars of claim are placed in the post, first class, properly addressed to the defendant, on Friday 8 January. The defendant intends to respond with an acknowledgment of service.
By when must the acknowledgement of service be filed?
Select one alternative:
Monday 8 February.
Monday 25 January.
Tuesday 9 February.
Wednesday 20 January.
Tuesday 26 January.
Monday 25 January.
The particulars of claim are deemed served the second day after posted if a business day, or if not, the next business day after that (CPR 6.26). They are posted on Friday 8 January, the second day after this is Sunday 10 January. This is not a business day. The next business day is Monday 11 January. The particulars of claim are deemed served on Monday 11 January. The period for filing the acknowledgment of service is 14 days after service of the particulars of claim – Monday 25 January.
A homeowner brings a negligence claim against a builder seeking damages in the sum of £29,000. The builder has admitted acting negligently but denies causing the homeowner any loss. Trial is likely to last one day. Each party will rely on one witness of fact. The parties have agreed that expert evidence will be needed only from one expert, who will be jointly instructed.
Which of the following is the normal track for this claim?
Select one alternative:
The fast track, because of the value of the claim, the expert evidence required and the length of trial.
The fast track, because of the value of the claim.
The multi-track, because of the value of the claim.
The fast track, because of the value of the claim and the expert evidence required.
The multi-track, because of the value of the claim and the length of trial.
The multi-track, because of the value of the claim.
The fast track is the normal track for any claim for which the small claims track is not the normal track and where the value is not more than £25,000 (there are additional requirements in CPR 26.6(5)). The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track (CPR 26.6(6)). The claim is for more than £25,000 and therefore the fast track is not the normal track, and therefore the multi-track is the normal track. Neither the length of trial nor the evidence to be put forward are incompatible with the fast track being the normal track (see CPR 26.6(5)), it is only the value of the claim which indicates that the multi-track is the normal track.
A girl who turned 14 on 10 April 2020 suffered lacerations to her legs in a car accident on 28 May 2020. The defendant (who was the driver of the car) provided her name, address, contact details and insurer’s details at the time of the accident. The defendant has admitted liability in pre-action correspondence but, as yet, the parties have not reached an agreement in relation to quantum.
By when must proceedings be issued to avoid any dispute in relation to limitation?
Select one alternative:
10 April 2024
10 April 2027
10 April 2030
28 May 2023
28 May 2026
10 April 2027
If a person is under a disability at the time that the cause of action accrued, the limitation period starts to run from when the disability ends and is 3 years in relation to personal injury. A person is under a disability whilst they are a minor – under 18. Penny ceases to be under a disability on her 18th birthday, i.e. on 10 April 2024. The 3 years starts to run then, and therefore she must commence the claim by 10 April 2027.
A business owner brings a professional negligence claim against a financial adviser in relation to a cause of action accruing 6 months ago. Both parties file and serve the necessary statements of case and the court lists a first case management conference. Seven days before that case management conference, the business owner decides that it wishes to amend its statements of case to add a claim in professional negligence against its accountant, as it believes the accountant (as well as the financial adviser) has also contributed to its losses.
From whom does the business owner need permission or consent to make this amendment?
Select one alternative:
Permission / consent is only needed from the court.
Permission / consent is needed from both the court and the financial adviser.
Permission / consent is needed from the court or from the financial adviser.
Permission / consent is needed from the court or from the accountant.
Permission / consent is not needed from the court, financial adviser or accountant.
Permission / consent is only needed from the court.
If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4 (CPR 17.1(3)). This applies here because the business owner’s statements of case have been filed and served. The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served (CPR 19.4(1)). The claim form has been served (see above) and therefore the court’s permission is required. There is no rule stating that either the accountant’s or the financial adviser’s consent is needed.
The partners in a firm of solicitors allege that a new partner (‘New Partner’) misrepresented the value of the client base which he would be bringing to the partnership upon joining the partnership. The claimants have brought a claim against the New Partner. The New Partner’s defence denies misrepresentation. Annexed to the defence is a document in which the defendant sets out the details of the client base and its value at the time the New Partner joined the partnership. Neither the claimants nor their legal representative understand this document, in particular because they do not understand a number of the abbreviations and calculations contained in it.
Which of the following is the best course of action for the claimants to take in light of the lack of a clear defence?
Select one alternative:
Apply to strike out the defence (or part of it).
Make a request for further information.
Apply for an order that the New Partner should provide further information.
Request disclosure of the documents supporting the analysis in the annex to the Defence.
Apply for summary judgment.
Make a request for further information.
The court has the power to order a party to provide further information, and this is likely to be more appropriate than applying for summary judgment or strike out given that the problem appears to be a lack of clarity / understanding in relation to part of the defence, not the lack of a defence itself nor a significant failure to plead a coherent defence more broadly. However, before applying for further information, a request for further information should be made (18 PD 1.1). Requesting disclosure of the supporting documents is not the best course of action. The defendant is unlikely to provide this because: - the dispute has not reached that stage in proceedings; - disclosure is unnecessary (if the statement of case is clarified); - giving disclosure is no substitute for having a clear statement of case; and - it is not clear that providing the underlying documentation would actually make clear the position taken in the defence.
A pedestrian’s claim for damages against a motorist is unsuccessful at trial in the County Court, judgment being given in favour of the defendant by the County Court Circuit Judge. The Circuit Judge refuses permission to appeal.
From whom, if anyone, can the pedestrian make a further request for permission to appeal?
Select one alternative:
A Recorder.
A High Court judge.
A Court of Appeal Judge.
A District Judge.
There is nobody from whom the pedestrian can make a further request for permission to appeal.
A High Court judge.
Where a lower court refuses an application for permission to appeal, a further application for permission may be made to the appeal court (CPR 52.3(3)). The destination of an appeal from a decision of a Circuit Judge in the County Court is a High Court Judge (CPR 52A PD 3.4).
A software company is concerned that a web-developer is using the software company’s intellectual property and confidential information to develop the web-developer’s business, in breach of those intellectual and property rights and in breach of confidence. The web-developer’s only revenue stream is £15,000 a month and it has no savings or valuable assets. The software company has cash readily available in the sum of at least £670,000 and is considering seeking an interim injunction to prevent these breaches pending trial because it is not possible to calculate the extent of the very significant losses the software company will suffer if the breaches continue.
Which of the following is the best advice as to the prospects of an application for an interim injunction succeeding?
Select one alternative:
The court must grant this application.
The application is unlikely to succeed.
The application is likely to succeed.
The court cannot grant this application.
The application is likely to be adjourned pending trial.
The application is likely to succeed.
There appears to be a serious question to be tried. Damages would be an inadequate remedy for the claimant because they cannot be quantified but the harm would be very significant, and the respondent appears to be of limited means. Damages would be an adequate remedy for the defendant, because the claimant has substantial assets and the damages can be quantified. Applying the American Cyanamid guidelines, it appears likely an injunction would be granted. However, this cannot be said for certain. There is no particular reason to adjourn the application, and it is interim relief which is being sought by the applicant, which by definition must be considered before trial.
You act for a food wholesaler in a breach of contract dispute with a food retailer. The court has ordered standard disclosure and both parties have carried out the requisite searches, prepared and served disclosure lists and carried out inspection. An email (the ‘Email’) then comes to the wholesaler’s attention. The Email is adverse to the wholesaler’s position and falls within the scope of the wholesaler’s disclosure obligations. Through no fault of the wholesaler, it was unaware of the Email at the time disclosure lists were served. The wholesaler indicates to you that in no circumstances will it notify the other party of the Email, disclose it or permit inspection.
Which of the following courses of action should you take if the wholesaler maintains this position regardless of your advice?
Select one alternative:
You should cease to act.
You should apply to court for permission to disclose the Email.
You should notify the retailer’s solicitor of the Email.
You should notify the court of the Email.
You are not required to take any further action.
You should cease to act.
CPR
The CPR are the rules that pervade all of litigation. They must be complied with, or sanctions might be imposed.
overriding objective
overriding objective of the rules is to deal with cases justly and at proportionate cost
Part of furthering the overriding objective is that the court will actively manage cases .
importance of pre-action considerations
Once proceedings have been commenced it is rarely possible to stop them unless a settlement is reached by the parties or one party is prepared to abandon its position and pay the opponent’s costs.
So it is important to make all necessary investigations, inquiries and analysis before commencing proceedings.
pre-action considerations
limitation period
case analysis
funding
conduct
pre-action considerations: case analysis
Firstly, a party will need to carry out a case analysis to make sure that it has a coherent legal position and the evidence to establish its position. Every fact which is in dispute in the proceedings must be proved. The burden of proving any particular issue of fact or law generally falls on the party who asserts it.
As it is the claimant who is asserting the claim, the claimant must prove duty, breach, causation and loss, and in practical terms the burden of proof therefore falls primarily on the claimant.
The claimant must prove a fact on the balance of probabilities , meaning establishing that it is more likely than not to have happened.
pre action considerations: limitation periods
PI: 3
other tort: 6 years
Part of carrying out a case analysis is identifying at an early stage when the limitation period expires. Proceedings must be issued within the limitation period or it is likely that the defendant will have a defence to the claim under the provisions of the Limitation Act.
In a personal injury claim, the claim must be commenced within three years of the latest of the date when the cause of action accrued, or the date of knowledge of the person injured and there are detailed rules about date of knowledge.
In other tort claims, and in contract claims, the limitation period is 6 years after the date on which the cause of action accrued.
pre action consideration: funding
legal aid funding
before/after the event insurance
third party funding
conditional fee arrangement
damages-based agreements
private funding
professional funding
pre action considerations: conduct
letter of claim
response
disclosure of key documents
negotiations and/or settlement proposals
taking stock before issuing proceedings
pre action considerations and conduct overview
- The Civil Procedure Rules underpin all of litigation.
- Their overriding objective is for cases to be dealt with justly and at proportionate cost.
- The court and the parties must help to further this overriding objective.
- Parties must carry out a case analysis at an early stage in a dispute including considering limitation issues
- The burden of proof lies primarily on the claimant.
- Any fact must be established on a ‘more likely than not’ basis.
- Each party should consider how it will fund the litigation.
- Parties should comply with the rules on pre-action conduct before commencing proceedings.
which court?
high court
county court
- PI <50k
- non PI <100k
other claims, consider
- value
-complexity
- importance to the public
wrong court
the court can transfer the proceedigns to the right court
BUT
there could be a costs sanctions
why does it matter when the claim form is issue?
limitation period –> proceedings are issued –> period for serving the claim form: 4 months
The date of issue of the claim form is important. It stops time running for limitation purposes – so the issuing of the claim is what has to happen before the end of the limitation period. And it starts the clock for a new deadline – the deadline in which the claim form must be served.
rules governing service
claim form
other documents
rules governing service of the claim form (and particulars of claim)
methods of service of claim form
- personally on D
- delivering or leaving the doc at a permitted address
- first class post
- fax
- electronic method (eg email)
- document exchange (DX)
But fax and email can only be used where the defendant has indicated that this is acceptable. In many cases, service by post is a perfectly adequate method of service.
deemed service
claim form: second business day after completion of the relevant step in CPR 7.5
other documents
- post/DX: second day after posting if a business day (otherwise, net business day)
- instant method (personal service/email/leaving at address)
– before 4.30pm on business day = same day
– otherwise, next business day
The CPR uses the concept of deemed date of service whereby the rules prescribe the date the court considers a document to have been served, irrespective of the date it was actually received by the recipient. The rules for the claim form differ from the rules for other documents.
The rules state that a claim form is deemed served on the second business day after completion of the relevant step in CPR 7.5. We looked at the relevant steps above – so, for example, the relevant step when serving by post is posting the claim form. So the claim form would be deemed served the second business day after it was posted.
Where a method that should be instant is used, like personal service, fax, email or leaving it at an address, then if this happens before 4.30pm on a business day, it is deemed served immediately. Otherwise, it is deemed on the next business day. So fax it on 4.25pm on a Friday, it is deemed served on that same Friday. Fax it at 5pm on a Friday, or 11pm on a Friday, or midday on a Sunday, then it is deemed served the next business day – ie the following Monday.
to issue proceedings
a claim form and court fee must be taken to court
The claimant needs to take the claim form to court to be issued and sealed – one copy for the court and one copy for each claimant and defendant.
the necessary step to serve the claim form must be completed before
12.00 midnight on the calendar day 4 months after the date of issue of the claim form (england and wales)
Assuming the proceedings are being served in England and Wales, the time limits provide that the ‘relevant step’ to serve the claim form by the chosen method of service must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form. The relevant step depends on the method of service, but for service by post, the relevant step is posting the claim form. For personal service, the relevant step is leaving the claim form with the individual concerned.
the particulars of claim must be
served with the claim form or
within 14 days of the service of the claim form (and also within the four month if england/wales)
If the claimant has done all this, it has a sealed claim form in its hand with a claim number. The next step is
to serve this on the defendant.
If the claimant is not going to be ready to serve the claim form in that period of time
the claimant will need to apply for an extension of time.
This needs to be done before the deadline is reached, and good reasons must be shown.
If the application is made after the deadline, this will only be permitted for the exceptional reasons stated in the rules.
If the claim form is not served within the deadline and the court does not grant an extension, then new proceedings will need to be commenced.
- The necessary step to serve the claim form must be completed before
12.00 midnight on the calendar day four months after the date of issue of the claim form
counting time
day on which period begins is not included
day on which the period ends is included unless the period ends on an ‘event’
period of 5 days or less - do not count weekends
court office closed? in time if done on next open day (only applies to acts which need to be done at the court office)
- Finally, if after applying the three rules set out above, the conclusion is that something has to be done on a Sunday or any other day when the court office is closed (including bank Holidays), the act will still be in time if done on the next day that the court office is open. This only applies to acts which need to be done at the court office.
response within 14 days after particulars of claim/claim form deemed served (DDS)
4 options
1 – defence
2 – acknowledgement of service
- within 28 days of DDS
- defence due / extension agreed or court
- up to 28 days more (56 total DDS)
- defence
3 – acknowledgement of service: dispute jurisdiction
4 – admitting the claim
The initial response must come within 14 days of deemed service of the claim form / particulars of claim.
If the acknowledgement of service is filed but the defendant wishes to file a defence, the time period for doing so is extended to 28 (rather than 14 ) days after deemed service of the particulars of claim.
if the defendant fails to respond, judgment may be entered against the defendant automatically.
no response?
claimant can apply for judgement in default
This is a judgment like any other, and means that the claimant has won, but it is given for the procedural reason that the defendant has failed to respond to the proceedings, not due to any consideration of the merits of the claim.
If the claim is for an unspecified sum, then the judgment will be for a sum to be assessed, and the court will set out a timetable leading to a hearing at which the court will decide the sum to be paid .
the Defendant does not need to respond until
it has received the particulars of claim
These could be included with the claim form or served at the same time as it, or they may follow shortly after service of the claim form
The defendants response must come within
14 days of deemed service of the particulars of claim
Why would a party choose to file an acknowledgement of service?
The most likely reason is that the defendant will then obtain an additional 14 days from deemed service of the particulars of claim to file a defence. So filing an acknowledgement of service has bought the defendant some extra time. The defendant originally needed to file its defence within 14 days of deemed service of the particulars of claim , but after filing an acknowledgement of service , this period is extended to 28 days after the deemed date of service of the particulars of claim.
A second reason is if the defendant wishes to dispute the court’s jurisdiction - either because it contends that the proceedings should have been commenced in a different jurisdiction (such as a different country), or because the defendant contends that the dispute should have been referred to arbitration instead. The acknowledgement of service will then be followed by an application indicating the basis on which the defendant disputes the court’s jurisdiction. There is space on the acknowledgement of service for the defendant to indicate the reason why it is acknowledging service.
What if the defendant is still not ready?
In those circumstances, the defendant can seek the claimant’s agreement to an extension of up to a further 28 days for the filing and service of the defence (so a total of 56 days from deemed service of the particulars of claim). If the claimant does not agree to this, or the defendant needs even more time, the defendant will need to apply to court.
admiting the claim
Note that it is possible to admit part of a claim. In those circumstances, a defence will need to be filed in relation to the part not admitted.
Finally, there is the option of admitting the claim. If the defendant does not wish to dispute the claim or has no credible defence, they may respond to the particulars of claim by admitting either the whole or part of the claim. Again, this must be done within 14 days of deemed service of the particulars of claim.
Following the admission, if the claim is for a specific amount of money, the court will enter judgment for the amount claimed.
If the claim is for an unspecified amount of money, for example a personal injury claim where the financial compensation for the injuries needs to be determined by the court, then judgment will be entered in relation to liability (ie it is established that the defendant is liable to compensate the claimant), but the amount to be paid will still need to be determined, and there will be a subsequent hearing and judgment in relation to that amount, following directions by the court.
options for D after judgment in default (due to lack of response)
It is very important to distinguish between a judgment in default which is wrongly entered, and one which is correctly entered.
Broadly, a judgment in default is wrongly entered if the claimant was never entitled to it. This could be because the proceedings were never properly served (and therefore the time limits for responding did not start to run). It could be because the time limits did start to run but they hadn’t passed at the time judgment in default was entered (presumably the claimant has miscalculated the time limits somewhere). Or it could be because in fact the defendant had responded appropriately to the proceedings by filing a defence. In any of these situations, because the claimant was not entitled to the judgment in default, the court must set it aside.
If the claimant was entitled to judgment in default (ie it was correctly entered), the defendant can still apply to have that judgment in default set aside, but it will need to show it has a real prospect of successfully defending the claim or that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend.
Any delay in making the application will make it less likely to succeed.
responding to proceedings summary
- A defendant should respond within 14 days of service of the particulars of claim
- The defendant can respond by filing and serving a defence.
- Alternatively, the defendant can file an acknowledgement of service, which extends the period for filing the defence from 14 to 28 days.
- The parties can agree a further extension of up to a further 28 days (56 in total).
- There are rules in the CPR which govern ‘counting time’, and in particular which clarify the meaning of ‘clear’ days and whether to count weekends
- It is also an option to admit the claim, leading to judgment on the whole claim, or judgment on liability for a sum to be assessed.
- A party who fails to respond to the particulars of claim in time may face a default judgment. They can apply to set this aside, but if properly entered, the defendant will need to show a real prospect of success in defending the claim, or another good reason to set aside the judgment.
statements of case
The statements of case are the documents by which both the claimant and the defendant set out their positions. They are therefore prepared , filed and served at an early stage in the proceedings.
What the statements of case do allow is for the parties and court to clearly identify the points of dispute so that the matter can proceed through the evidence stages to trial smoothly. It is important to get the statements of case right, as that is no guarantee that it will be possible to amend them later, and any amendments that are allowed can cause wasted time and costs.
FACTS relied on and the factual allegations made in support of that party’s case
not evidence (this will be considered at a later stage when documents and witness statements are exchanged)
not law (This will be argued by the advocates in their submissions)
statemetns of case: claimants vs defendant
claimant
- claim form
- particulars of claim
- (reply)
- (defence to counterclaim)
defendant
- defence
- (counterclaim)
claim form content
parties names and addresses
nature of the claim
remedy sought
statement of value and justification for high court (if appropriate)
The claim form is generally a brief document. It sets out the parties’ names and addresses and a great deal of care must be taken to ensure that the names are written out correctly. It sets out a brief statement of the nature of the claim , but only in a few sentences (and this is not to be confused with the particulars of claim which are much more detailed). It sets out the remedy sought (generally a sum of money). And it must include a statement of value. If the claim is for a specified sum, the claim form can state the sum claimed. If it is not for a specified sum , the claimant should indicate that the claimant expects to recover less than £10,000, between £10,000 and £25,000, or more than £25,000 , the significance of these figures being that they represent the boundaries of the different tracks for allocation purposes , which are considered in a different presentation. Alternatively, if absolutely necessary, the claim form can indicate that the claimant cannot say how much it expects to recover. If the claim is being commenced in the High Court, the claim form must indicate that the claimant expects to recover more than the lower limit justifying claims being issued in the High Court (which differs for personal injury and non personal injury claims) or other reason for issuing proceedings in the High Court.
particulars of claim
duty breach causation and loss
PI claims: C’s DOB, details of injuries, schedule of past and future expenses and losses
written agreement: attach
oral agreement: details
claim for interest
The particulars of claim set out the facts underpinning the claimant’s claim. They are more detailed than the claim form and in terms of length can be anything from a paragraph or two to many pages. Given that they have to set out the basis of the claimant’s claim, they will normally set out the facts establishing duty, breach, causation and loss, although some claims will be conceived differently. There are also particular rules for particular types of claim. Personal injury claims need to set out the claimant’s date of birth and injuries, and to include a schedule of past and future expenses and losses. Where a claim is based on a contract, the contract should be attached if it is in writing, whereas if the contract was formed orally, the particulars of claim should set out the words spoken, by whom, to whom, when and where they were spoken. Finally, the particulars of claim should include a claim for interest. The detail included in the interest calculation depends on whether the claim is a specified claim (in which case the claim for interest can be more detailed and specific) or an unspecified claim. There are of course various formalities, formatting points and conventions to be followed when particulars of claim are drafted.
defence
responding to particulars, paragraph by paragrah
x3 responses
1 – admit
2 – deny: need reasons and different versions of events
3 – require proof (if something which the defendant does not know)
NO RESPONSE = admit
other matters: limitation, mitigation, counterclaim, set-off
If the defendant admits an allegation, the claimant is not required to prove it. Anything which is not disputed or which is uncontroversial should be admitted.
Denials should be used to dispute facts which if they had occurred would have been within the defendant’s knowledge ie things which the defendant knows or reasonably believes did not happen because if they had have happened it would have known about them.
statement of truth
contempt of court
All statements of case, claim form, particulars of claim, defence and others, include a statement of truth. This is a particular form of authorisation by the person at the client signing the document (or authorising the solicitor to sign it) that they have an honest belief in the truth of the document. Signing a statement of truth without such an honest belief can lead to sanctions, including a finding of contempt of court and, ultimately, imprisonment.
unclear statement of case
apply to strike out
apply for summary judgement
ask for clarification
use the procedure in CPR 18 – request further information
- make a formal request before applying to court
- confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand opponents case
. Also, where a party requests clarification or further information in relation to a statement of case, the response to that request is itself a statement of case and must be verified by a statement of truth , reflecting this formality and importance.
statements of case summary
- The purpose of a statement of case is to set out the facts relied on and the factual allegations made in support of that party’s case.
- The most common statements of case are the claim form, particulars of claim and the defence.
- The claim form sets out the parties’ names and addresses, the nature of the claim, the remedy sought, a statement of the value of the claim and a justification for issuing in the High Court (if appropriate).
- The particulars of claim set out the key facts underpinning the claim: normally the facts establishing duty, breach, causation and loss.
- The defence responds to the particulars paragraph by paragraph, admitting, denying (with reasons) or requiring proof of each element.
- A party can serve a Part 18 request or apply to court for further information about a party’s case.
interim applications
Interim applications are applications for orders or directions made to the court, usually in the ‘interim’ period between the commencement of proceedings and trial. Some interim remedies can be applied for before the commencement of proceedings.
Examples of interim applications are varied, but include extending the time period for taking a particular step in the proceedings, applying to amend a statement of case, requiring the other party to provide further information, requesting specific disclosure of a document and seeking permission to rely on expert evidence.
Notwithstanding that interim applications can be made at any stage in the proceedings, the overriding objective will normally require an interim application to be made as early as possible.
interim applications – with notice procedure
normal procedure for making an interim application
application/evidence/draft order
court gives a date
A serves documents to R 3 days before hearing
(R responds asap)
(A replies asap)
statements of costs 24 hours before hearing
Firstly I issue an application notice at court, and also file evidence in support of that application. I attach a draft order, so the order that I want the court to make ie an order granting an extension of time for the filing and serving of my defence, and possibly also an order that the claimant should pay my costs of the application.
When I issue that application at court, the court will give me a hearing date at which the court will decide that application.
Then I serve those documents on the other party, the claimant. I must do that at least three clear days before the date which the court has set for the hearing.
The claimant may well want to oppose my application, and to file evidence opposing the application. It must do so as soon as possible, filing and serving that evidence.
If I wish to rely on evidence in reply, I must then file and serve that as soon as possible.
At the hearing the court may want to determine that one party should pay the other party’s costs in relation to the application, in which case it will need to know what those costs are , so the parties file and serve statements of costs 24 hours before the hearing as well.
Then there is a hearing at which the court decides whether or not to grant the extension of time for filing and serving the defence, and whether one party should pay the other party’s costs in relation to the application.
interim applications – without notice procedure
applicant only but mitigation x2 (disclosure + second hearing with R)
It is possible to make an application without notice, meaning without telling the other party. In this case, the application is prepared and issued at court, but it is not served and the respondent has no opportunity to respond to it or to appear at the hearing. At the hearing, the court hears only from the applicant. Obviously, this is not generally how justice is done , and this procedure can only be used when justified.
Examples of when this procedure might be appropriate are if the application is extremely urgent , or if the object of the application would be defeated by giving notice eg search order.
To mitigate the potential unfairness of this procedure, in the respondent’s absence the applicant must give full and frank disclosure of matters relevant to the hearing even if adverse to the applicant’s position. The application and evidence will be served on the respondent after the hearing. In relation to some kinds of application, if the court grants an order at a without notice hearing, it will also arrange a second hearing to decide whether the order should continue, and the respondent will be able to attend and make representations at that hearing.
interim applications – summary judgment
SJ enables the court to dispose of weak cases or issues without the need for a full trial
The claimant can apply for summary judgment ie for the court to determine that the claim has succeeded. The defendant can also apply for summary judgment ie for the dismissal of the claim. And summary judgment can be sought in relation to the whole claim or in relation to specific issues .
grounds for summary judgment
the claimant has no real prospect of succeeding on the claim or issue
OR
the defendant has no real prospect of successful defending the claim or issue
AND
there is no other compelling reason why the case or issue should be disposed of at trial – for example that the respondent needs further time to investigate the matter, or there are difficult questions of fact or law, or the claim is highly complex.
The party applying for summary judgment needs to show that the other party has no real prospect of success on the claim or issue to which the application relates. In addition, the party applying for summary judgment needs to show that there is no other compelling reason why the case or issue should be disposed of at trial.
interim applications – summary judgment – with notice procedure
summary judgement more time than default rules of interim applications
14 (serve) - 7 (response) - 3 (reply)
So the application notice and supporting documents must be served on the respondent at least 14 days before the hearing, if the respondent wishes to file on evidence in reply this must be filed and served seven days before the hearing, and if the applicant wishes to file and serve further evidence in reply this must be filed and served at least three days before the hearing.
If an application for summary judgment relates to the entire claim and is successful, the claim is at an end. If an application for summary judgment relates to the entire claim and it is unsuccessful, the claim continues as it originally would. If the application for summary judgment relates to particular issues only, then whatever the outcome in relation to those issues, the claim will need to proceed towards trial in relation to the remaining issues at least.
security for costs (interim application)
D against C for costs
Security for costs is an application made by a defendant (the applicant) who is concerned that the claimant (the respondent) does not have sufficient funds to meet the defendant’s costs should the claim by successfully defended.
CPR 25.13(1)(a): having regard to all the circumstances of the case, it is just to make an order
AND
CPR 25.13(1)(b): one or more of the conditions set out in CPR 25.13(2) are satisfied
A relatively common condition is that the claimant is a company and there is reason to believe it will be unable to pay the defendants costs if ordered to do so - generally because the claimant is in a poor financial position. An alternative condition is that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it – for example, intentionally moving them into jurisdictions overseas in which it is particularly hard to enforce a judgment of the English and Welsh courts .
interim payment (interim application)
C against D (re substance of the claim)
an interim payment is a payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant
Court only in specific circumstances x3:
- D has ADMITTED LIABILITY to pay damages (or some other sum of money) to the claimant OR
- the claimant has OBTAINED JUDGMENT AGAINST THAT DEFENDANT FOR DAMAGES TO BE ASSESSED (or for a sum of money other than costs) to be assessed OR
- if it is SATISFIED that, if the claimant went to trial, the claimant would obtain judgment for a SUBSTANTIAL AMOUNT of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim
interim payment (interim application) – with notice procedure
interim payments same timing as summary judgments
Just like summary judgment, this type of application has special timings, and they are in fact the same timings as in an application for summary judgment. So the application notice and supporting documents must be served on the respondent at least 14 days before the hearing, if the respondent wishes to file any evidence in reply this must be filed and served seven days before the hearing, and if the applicant wishes to file and serve further evidence in reply this must be filed and served at least three days before the hearing.
Interim injunction
An injunction is only awarded when just, and it is an equitable and discretionary remedy.
By way of guidelines to the exercise of that discretion, an injunction will only be considered if there is a serious question to be tried – a genuine underlying claim.
If damages at trial would be an adequate remedy for the applicant, an interim injunction is unlikely to be awarded.
If damages would not be adequate for the applicant, but the respondent could be adequately compensated with damages if it transpires that an injunction is wrongly granted, then this points in favour of granting an injunction.
If damages would be adequate for neither party, the court will consider the balance of convenience, balancing the potential injustice to each in party in refusing or granting an injunction to make a decision.
Interim injunctions - procedure
Interim injunctions are a powerful and disruptive remedy, with particular procedural safeguards.
A court will often decide to grant an interim injunction only if the applicant offers a cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction
- for example, if proceedings are discontinued, or the injunction is discharged before trial, or if it is decided at trial that the applicant had not been entitled to restrain the respondent from doing what it was threatening to do.
The application for an interim injunction, like any interim application, can be made without notice if this is justified but the court will fix a second hearing in order to hear from the respondent, and to decide whether to keep the injunction in place.
An application can be made before a claim is issued if this in the interest of justice, but the applicant will be required to undertake to issue a claim form immediately.
interim applications – summary
- Interim applications are applications made before the dispute reaches trial.
- An application is made by filing an application notice, evidence and usually a draft order at court, and then serving this on a respondent, who may file evidence in reply. The application is then determined, usually at a hearing. In limited circumstances, an application can be made without notice – without giving the other side a chance to respond.
- An application for summary judgment is an application to bring a weak claim or issue to an end without it going to trial.
- An application for security for costs is made by a defendant, and aims to make the claimant put aside a sum of money which will be available to satisfy any future costs order that might later be made in the defendant’s favour.
- An application for an interim payment is made by a claimant, and seeks a payment of a sum of money in relation to the claim in advance of trial.
- An application for an interim injunction seeks an order for the respondent to do or not do something pending trial.
stages of litigation
9 stages + interim applications/settlement before trial
pre-action considerations and conduct
claim form and particulars of claim
acknowledgement of service and/or admission / defence / defence and counterclaim
allocation, case and costs management
disclosure
witness statements
expert reports
preparations for trial and trial
enforcement or appeal
allocation
3 tracks
small claims track: 10k or less (special rules of PI)
fast track: up to 25k and trial 1 day max + oral expert evidence one per party in two fields max (Note that the limit is on the number of experts that can give evidence orally, not on the number of experts that can give evidence in writing)
multi-track: everything else
Note that these rules help you determine which is the normal track for a particular dispute. The court can allocate a claim to a track which is not the normal track, if the importance or complexity of the claim justifies this.
allocation procedure
defence is filed
notice of proposed allocation
directions questionnaire
allocation to track
- small claims track = directions
- fast track = directions
- multi-track = case management conference + directions
And here is how the court makes the decision as to which track a claim should be allocated to . We pick up the story after the filing of a defence. The court will send out a notice of proposed allocation, indicating the track which it proposes to allocate the claim to , based on the value of the claim. The court will ask the parties to send in directions questionnaires. The directions questionnaires indicate which witnesses and experts the parties intend to rely on, how long they think the trial will last, and some preliminary indications about disclosure. These are all things that the court can use to decide which track is appropriate. If the claim has been provisionally allocated to the fast track or multi-track, the parties also file proposed directions. The court will then allocate the claim to either the small claims track, fast track or multi-track. If the court wants to it can organise a hearing to enable it to decide which track to allocate the claim to, presumably because it can’t make this decision on the basis of the directions questionnaires alone, but this is rare.
costs and case management procedure (multi track)
not less than 21 days before CMC: budget
not less 14 days before CMC: disclosure report (except where the claim includes a claim for personal injury in which case there is no obligation to do this)
no less/at least 7 days before first CMC: draft directions + budget discussion report
cost and case management conference
Budget + disclosure report + draft directions + budget discussion report
product of CCMC
directions + costs management order
small claims track implications
For example, on the small claims track, a party is rarely allowed to recover anything substantial from the opponent in relation to legal costs, and the usual formal rules of evidence will not apply at trial. This track aims to accommodate litigants who do not have legal representation. On the fast track, for example, there are relatively standard directions that the court will often give, in the hope that this will avoid excessive costs being incurred at the case management stage.
mutli track
In such a case, rather than giving directions based solely on what is in the parties’ directions questionnaires, the court may well list a case management conference.
A disclosure report indicates
indicates documents that may exist, where and with whom they are located, the scope of electronic documents and the broad range of costs that would be involved in giving standard disclosure.
The parties can also use the disclosure report to indicate that they want a different order for disclosure ie not standard disclosure.
The purpose of this document is clearly to help the court decide what disclosure order to make at the case management conference.
draft directions
The other document to be filed at CMC is a set of draft directions so the court knows in advance of the hearing what directions each party is seeking. If the parties can agree all of the draft directions, the court might vacate , meaning cancel, the case management conference and make directions in the form requested by the parties.
CMC: budget
The budget includes a statement of costs already incurred but its primary purpose is to set out an estimate of the future costs. So each party is required to look ahead at what will be required for the case management stage, for disclosure, for witness statements, for trial and so on , and to estimate the legal costs that will be incurred in each of those stages.
budget discussion reports
The parties discuss budgets. So if I was acting for a defendant, I would receive the claimant’s budget 21 days before the first case management conference, and I would go through that and consider whether what the claimant has estimated it is going to spend is proportionate. If I think it is , I’m going to advise my client to agree the figures in the budget. If I don’t think so, I’m going to discuss that with the representatives for the claimant. And then after that discussion, the discussion is going to be recorded in a discussion report, which will show which bits of the claimant’s budget the defendant has agreed, and which bits the defendant disagrees with.
Exactly the same will happen in relation to the defendant’s budget, my own client’s budget, which would have been served on the claimants 21 days before the first case management conference.
The budget discussion report is filed 7 days before the CMC.
So by the time we get to the case management conference, the court has a budget from each party, and a budget discussion report showing what the other parties think in relation to that budget.
a costs management order
the court can make a costs management order and indeed will do so unless it is satisfied that litigation can be conducted justly and proportionately without such an order
A costs management order records two things. Firstly, it records the extent to which budgets are agreed.
If the parties agreed figures there, the court won’t change them it will just record that agreement.
But in relation to elements of the budgets that are not agreed, the court will set the figures.
Now what the court can’t do via this mechanism is control the costs between a party and its own solicitor. So, for example, let’s assume I am a solicitor acting for the defendant, and let’s assume that the court fixes the costs for witness statements for the defendant at £8,000. This does not mean that the only legal costs the defendant can incur with me in relation to witness statements are £8,000. That’s our business . But it does mean that the court has identified in advance that £8,000 pounds is a proportionate sum to be incurred in relation to witness statements, and by implication anything more is not a proportionate sum. And when the court does come to assess costs at the conclusion of the matter, if the claimant is paying the defendant’s costs for example, then the court will not allow the defendant to recover more than the figure in the budget unless satisfied that there is a good reason to do so.
court orders can impose sanctions when the party fails to file cost budget
The court rules provide a specific sanction for a party that fails to file a budget when ordered to do so, normally 21 days before the case management conference. The sanction is that the party is automatically treated as having filed a budget comprising of only the applicable court fees. If the court then approves this budget in a costs management order, the starting point in any future assessment is that the party can only recover the applicable court fees. In practical terms this would be utterly disastrous and so the requirement to file a budget on time should not be overlooked.
revisit budget
In those circumstances, the defendant should revise its budget, submit it to the claimant for agreement if possible, and then in any event submit it to court for the court to consider the proposed revision. The court may allow revisions based on significant developments in litigation, but will not allow revisions simply to correct inaccuracies in the original budgeting process.
case and costs management summary
- Claims are allocated to one of three tracks: this affects the rules that apply to the claim and the way the claim is likely to be managed by the court.
- If a claim is allocated to the multi-track, there is generally a more complex case and costs management procedure than adopted on the other tracks.
- This involves filing a disclosure report 14 days before a CMC, and draft directions 7 days before the CMC.
- On the costs side, a party will need to file a budget 21 days before the first CMC and a disclosure report 7 days before the CMC.
- Where budgets have been filed and served, a court will consider these when deciding what directions to give.
- The court might make a costs management order, which indicates the proportionate costs for each stage of the proceedings, and a court later assessing costs will not award more than the figures in the costs management order unless there is good reason to do so.
costs: general rule + exception
unsuccessful party pays the succesful party’s costs
By way of exception to this general rule, in cases concerning personal injury or death, the rules of QOWCS apply. These provide that if the claimant loses the case or any aspect of it, costs orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.
when does assessment of costs take place
summary assessment (for court to assess the costs, the parties would have filed statements of costs at least 24 hours before the hearing)
- hearing of an interim application <= 1 day
- fast track cases
detailed assessment: other cases
interim costs order
type of interim application
interim costs orders
- cost in any event
- no order as to costs
- costs in the case
There are various types of interim costs order that the court can make. A common one is an order for costs in any event , for example that the defendant should pay the claimant’s cost of the application in any event . This means that regardless of what happens at trial, the defendant is paying the claimant’s costs in relation to that application. So that really is separating the cost of the application out from anything that happens at trial. An order of no order as to costs, means that no party can recover the costs of the interim application from the other party, and again that remains the case regardless of what happens at trial. That’s not such a common order. A slightly different idea is to make an order for costs in the case. If the court makes this interim costs order, it is saying that the costs of this application should be paid by the party that pays the costs following the trial so effectively the costs of the interim application are just lumped in with the costs of the action as a whole and paid by whoever pays those costs. This might be appropriate where the court does not think that either party is successful in relation to the interim application, or an interim hearing is more of a case management or procedural matter than something contentious and therefore it would be inappropriate to order one party to pay the other party’s costs of that interim application immediately.
costs summary
- Litigation is usually expensive: a party will likely incur costs in relation to solicitor’s fees, counsel’s fees, court fees, expert’s fees and other costs
- The court has a broad discretion to order one party to pay another party in relation to the costs they incur.
- The general rule is that the unsuccessful party pays the successful party’s costs.
- The court will rarely allow a party to recover all the costs it incurred: it will usually only allow recovery of what is reasonably and proportionately incurred and reasonable and proportionate in amount.
- The court will normally carry out any such quantification process immediately following an interim hearing of one day or less, or following a fast-track trial – this is ‘summary assessment’.
- In other cases, the quantification process follows a separate procedure – ‘detailed assessment’.
limits on costs recovery
A party cannot recover more from an opponent than it is liable to pay in relation to litigation – It cannot make a profit out of the costs .
And the court can allow this recovery of costs by one party from the other .The court has a broad discretion to decide whether to order such costs to be paid, how much and when.
assessment of costs
The claimant will now tell the court that its costs in relation to that application were £3,000 pounds and ask for that. But the court does not automatically order the defendant to pay £3,000. The court will assess those costs, and the test the court will normally apply is to ask whether the different items that make up the £3000 were proportionately and reasonably incurred and proportionate and reasonable in amount.
If the claimant’s solicitor spent a disproportionate amount of time on the witness evidence in support of the application, that excessive time will not be recoverable. If the claimant incurred travel expenses which were not reasonably incurred, they will not be recoverable. By the time the court has finished with this process, it is typical for the party receiving costs to only receive perhaps 60% of what it sought in the first instance.
summary v detailed assessment of costs
Summary assessment is a more rough and ready process. It involves the judge who has just decided that one party should pay the other party’s costs deciding the precise amount then and there
The alternative form of assessment is detailed assessment. The way this works is that a trial judge or a judge deciding an application would order that one party pays the other party’s costs, to be assessed if not agreed. The judge then does not make any attempt to assess the costs. Instead, if the parties cannot agree these between themselves, one party must start a detailed assessment procedure, which begins by serving a bill of costs, a particular form of statement of costs, on the opponent, the opponent replies to that and there may be some negotiation, and that process finally concludes with the costs being determined by a costs officer. Obviously that is a more complicated, costly and long-winded process, so it is appropriate where there are more substantial amounts of costs at stake.
disclosure
stating (to another party) that a document exists or has existed
inspection
the party to whom a document has been disclosed – looking at a document. where a party has a right to inspect a document, they also have a right to request a copy of that document, and this is commonly also referred to as inspection.
usual paths to a disclosure order
Whatever disclosure obligation is imposed on the parties by a court order, that duty of disclosure continues until proceedings are concluded.
small claims track:
- disclosure order included in directions given on allocation
- usual order: 14 days before hearing, file and serve documents relying on
fast track
- - disclosure order included in directions given on allocation
- usual order: standard disclosure
multi track (directions are often given following a case management conference rather than automatically on allocation)
- disclosure report filed and served not less than 14 days before CMC (not PI claims)
- conversations between the parties not less than 7 days before the CMC
- court makes appropriate disclosure order: there is no usual order
standard disclosure
Standard disclosure requires a party to disclose a document which is or was in their control, and which falls within the test in CPR 31.6 (and which (in broad terms) help or hinder either party’s case.)
is it a document? CPR 31.4: a very broad definition and includes all manner of data and electronic documents, as well as videos and photographs.
is/was it in the party’s control? CPR 31.8: Broadly speaking, a document is in a party’s control if they have it in their possession or have a right to possess or inspect or copy it. And the party also has to disclose documents that were in their control but are not anymore, perhaps because they have been sent somewhere else or have been destroyed.
does it fall within CPR 31.6?
- carry out a reasonable search
(what is reasonable depends on the number of documents involved , the costs involved in this search and the nature of the proceedings)
- list the documents
(note that a disclosure list must include a disclosure statement confirming that the party has carried out its disclosure obligations.-
inspections
send copies within 7 days
all inspection within 7 days
a party has a right to inspect a disclosed document except where
- no longer in control
- disproportionate
- right / duty to withhold inspection (eg privilege)
types of privilege
legal advice privilege
litigation privilege
without prejudice privilege
So if any of these privileges applies, the disclosing party does not need to let the other party inspect the document. And remember that when the disclosing party lists the documents, it will indicate in the list which documents are privileged, and so the receiving party knows the disclosing party will not let it inspect those documents.
legal advice privilege
a document which is confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice
Note that this does not need to be legal advice about litigation.
Legal advice privilege could attach to legal advice about buying a house or selling a company where there is no dispute between the parties. Note however that it does need to be a communication between a lawyer, usually a solicitor or barrister, and a client. Legal advice from someone who is not a lawyer (such as a legally skilled accountant) would not attract this privilege.
litigation privilege
a document which is a confidential communication which passed between the lawyer and his client or between them a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect
So note that for this privilege to apply, the document does need to be connected with litigation in one of the ways stated. However, the communication could be with a third party , not necessarily between a lawyer and client.
without prejudice privilege
a doc whose purpose is a genuine attempt to settle a dispute
disclosure/inspection summary
- An important stage in preparing and exchanging evidence before trial is the process of disclosure and inspection.
In most cases, the court will order a party to disclose the existence of certain documents to the other parties. - The most common type of disclosure order is for standard disclosure, which requires a party to disclose documents which are or have been in its control and which (in broad terms) help or hinder either party’s case.
- Once the existence of a document has been disclosed, the default position is that the other parties are entitled to look at the document or to receive a copy of it – this is inspection.
- A party can resist permitting inspection of a document if the document is privileged.
witness statemetns – trial
serve a witness statement in advance of trial
oral evidence at trial
- evidence in chief: witness statement
- cross examination by other side
- re examination by own side
witness statements – interim application
no oral evidence at hearing of interim application
expert evidence
need the court’s permission to adduce evidence at trial
expert evidence restricted to that which is ‘reasonably required’ to resolve proceedings
single joint expert or separate experts
report
questions to expert
meeting of experts
oral evidence at trial
OVERRIDING DUTY TO THE COURT
Witness and expert evidence
- If a party wishes to rely on a witness at trial, a witness statement needs to be served in accordance with the court’s directions.
- Witnesses should not generally give their opinions on matters – they should stick to the facts.
- Expert evidence is used to assist the court on matters which require expertise, and they can give opinions.
- Permission is needed to adduce expert evidence at trial, and will only be granted if and to the extent reasonably required to resolve the proceedings.
- In the first instance, experts give their evidence by producing a report. A party can ask questions in writing about a report, and in some cases, experts will meet to discuss matters and may be permitted to attend court for cross examination.
types of evidence
documentary evidence: disclosure
witness evidence: expert and witness of act
expert v witness of fact
However a witness of fact, that gives evidence via a witness statement, is giving evidence about what they have perceived with their own senses.
Expert witnesses, on the other hand, give evidence about matters of opinion which are within their expertise.
The rules that govern expert evidence are different to the rules that govern witnesses of fact.
general rule for fact that need to be proved by the evidence of witnesses
The general rule is that any fact that needs to be proved by the evidence of witnesses at trial will be by oral evidence - so the witnesses need to attend trial and give their evidence orally.
evidence in chief
What the rules provide is that the claimant should serve a witness statement in advance of the trial, on the date ordered by the court, which indicates what the delivery driver would say in his evidence in chief.
That witness statement then stands as the evidence in chief at trial - no time is wasted making the delivery driver repeat all of this at trial, and the parties have the advantage that they know in advance what the delivery driver’s evidence is.
The cross examination and re examination do still take place. If a party fails to serve a witness statement, the witness cannot be called to give evidence at trial unless the court gives permission.
A witness statement must be verified by
A witness statement must be verified by a statement of truth and a witness who makes a false statement in a witness statement without an honest belief in the truth of that statement may face proceedings for contempt of court.
witness statements and interim applications
As well as being used in relation to trial, witness statements are also used in relation to interim applications, but in a different way
If, for example, you are asking the court for an extension of time to do something, you are going to want to explain why the extension should be granted, and this is likely to involve putting evidence before the court – for example, evidence that work is taking longer than expected or that someone involved in the process has been ill.
Often that kind of witness evidence will come from the solicitor representing the litigant themselves.
This kind of evidence also goes in a witness statement which is also served in advance of the hearing of the interim application. However, whereas when it comes to trial a witness attends the trial to be cross examined, at the hearing of an interim application the normal rule (which is rarely departed from) is that there is no oral evidence at the hearing. So the witness statement is the only way that the witness gets its evidence before the court in relation to that interim application.
witness statements and court discretion
It is important to understand that the court can control the witness evidence to be used in proceedings, for example by limiting the number of witnesses, the length of witness statements or the issues in relation to which witness evidence should be permitted.
expert witness
The rules that govern expert evidence are different to the rules that govern witnesses of fact.
The costs of instructing an expert can be quite significant and so the court’s permission is needed to adduce evidence at trial from an expert.
Of course, a party or its solicitors can speak to as many experts as they want, but what the court controls is what evidence can be put forward at trial.
Ideally, a party that wishes to use expert evidence will seek permission to rely on expert evidence in draft directions or at a case management conference, so there will be a direction including permission for expert evidence in the directions given at the case management stage.
If not, an interim application will need to be made for permission to adduce expert evidence.
When the court is deciding whether or not to give permission for a party to adduce expert evidence
the court will restrict expert evidence to that which is reasonably required to resolve proceedings – if no expert evidence is reasonably required to resolve proceedings, permission will not be granted for any expert evidence.
When the court is deciding whether or not to give permission for a party to adduce expert evidence – If permission is going to be granted
If permission is going to be granted, there are two options.
Each party can be given permission to instruct a separate expert and the result of this is obviously that the court ends up with two expert opinions.
The alternative is that the parties effectively share one expert, a single joint expert, and they work together to instruct that expert, and in due course the court receives just one opinion.
The advantage of a single joint expert is that it is a less costly option, and you do not have to deal with the difficulty of two conflicting opinions, but instructing separate experts has the advantage that the court benefits from a range of opinions. The latter is more likely in higher value or more complex disputes .
role of experts
An expert will be provided with copies of important documents such as the statements of case, documentary evidence and witness evidence (as disclosure and exchange of statements of witnesses of fact will already have taken place).
The expert will then produce a report which will be sent to the parties .
If the parties are instructing separate experts, these reports will be exchanged.
That report or those reports then become evidence to be used at trial. In many cases this is all that is required to put the expert opinion before the court.
In some cases, however, there will be further steps. So for example a party receiving an expert’s report may ask questions in writing to clarify bits of the report that are not clear . In addition, if the parties instructed separate experts, there may be a meeting of experts . At that meeting, the experts will discuss their differences and produce a summary of matters that they have managed to agree and matters which they have not managed to agree, with reasons. Finally, the court can give permission for an expert to give oral evidence at trial, which then allows the expert to be cross examined. Just like the court has broad powers to control the way in which evidence from witnesses of fact is given, the court can control whether and when meetings and / or oral expert evidence is required.
an expert’s overriding duty is to
the court
not to the party or parties that instructed them.
An expert should be giving an unbiased opinion and never assuming the role of an advocate for a particular side.
witness and expert evidence summary
- If a party wishes to rely on a witness at trial, a witness statement needs to be served in accordance with the court’s directions.
- Witnesses should not generally give their opinions on matters – they should stick to the facts.
- Expert evidence is used to assist the court on matters which require expertise, and they can give opinions.
- Permission is needed to adduce expert evidence at trial, and will only be granted if and to the extent reasonably required to resolve the proceedings.
- In the first instance, experts give their evidence by producing a report. A party can ask questions in writing about a report, and in some cases, experts will meet to discuss matters and may be permitted to attend court for cross examination.
types of ADR
negotiation: communication process aimed at reaching agreement
mediation: impartial mediator aimed at reaching agreement
early neutral evaluation/expert appraisal/ expert evaluation: give an opinion to both parties, often expert/technical
arbitration: alternative to litigation, governed by rules and statute
expert determination: based in contract, experts determine the dispute / particular issues
conciliation: facilitative, varied meanings
why use ADR
better relationships
less expensive
privacy/ confidentiality
saves time
flexibility of outcomes
recording a settlement agreement
where proceedings have not been issued: settlement agreement ie contract
where proceedings have been issued
- consent order (plus settlement agreement?)
- tomlin order (plus settlement agreement?)
part 36 summary
- Part 36 offers can be made by any party.
- If accepted in the relevant period, the defendant will pay the claimant’s costs.
- If accepted after the relevant period, the usual rule is that offeree pays offeror’s costs after the expiry of the relevant period.
- A part 36 offer can be withdrawn after the expiry of the relevant period, unless it has been accepted.
- If a claimant does better at trial than its own offer, it will normally receive extra costs, interest and a lump sum.
- If a claimant fails to do better at trial than a defendant’s offer, it will normally be required to pay some of the defendant’s costs, and interest on those costs
Part 36 offers
who and when
Part 36 offers can be made by either party and they can be made at any stage of the proceedings.
part 36 basic concept
Part 36 offers can be made at any stage of proceedings, including before proceedings are issued.
A Part 36 offer can be made by either party.
Part 36 offers contrasted with Calderbank offers
Part 36 is quite specific that nothing within Part 36 prevents a party from making an offer in whatever way it chooses, including by making a Calderbank offer:
Key word: ‘Calderbank offer’:An offer, usually communicated in writing, and written ‘without prejudice save as to costs’, such that it cannot be referred to the judge until costs are considered after trial, but at point can be relied upon. Such an offer does not need to comply with Part 36.
Although the specific consequences of Part 36 do not apply the court will have regard to a Calderbank offer when it exercises itsdiscretion on costs(pursuant to CPR Part 44).
However, if a party wants to avail itself of the specific cost consequences and protection afforded by Part 36 it must make the offer in compliance with the rules set out in Part 36.
How to make a valid Part 36 offer
Within the rules the party making the offer is defined as the ‘offeror’ and the party receiving the offer is the ‘offeree’.
The rules (CPR 36.5) state that the Part 36 offer must:
1 – Be in writing;
2– Make clear it is made pursuant to Part 36;
3– Specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs if the offer is accepted (called the ‘relevant period’);
4 – State whether it relates to the whole or part of the claim; and
5 – State whether it takes into account any counterclaim.
These rules apply to both claimants’ and defendants’ offers. There are two further rules that apply to defendants’ offers only (CPR 36.6):
a – With limited exceptions, a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.
b – A defendant’s offer that includes an offer to pay all or part of the sum at a date later than 14 days following the date of acceptance will not be treated as a Part 36 offer unless the offeree accepts the offer.
When is a Part 36 offer made?
When it is served on the offeree (CPR 36.7(2)).
The rules of service (CPR 6) apply. A party need not wait until proceedings are issued to make a Part 36 offer as they can be made before proceedings have been commenced. This means that pre-issue Part 36 offers have the usual Part 36 consequences (including recoverable pre-action costs) upon acceptance after issue of proceedings or upon judgment being given. Where a Part 36 offer is both made and accepted before proceedings are commenced, the Part 36 consequences of acceptance (CPR 36.13 and 36.14) considered in this element have no effect since the consequences are dependent upon there being extant proceedings. The consequences of a Part 36 offer later in this element assume proceedings have been issued.
Withdrawal of a Part 36 offer
If the offer has already been accepted… it cannot be withdrawn, or its terms changed (CPR 36.9(1)).
If the trial has already started…the court’s permission is required to withdraw the offer.
Otherwise, has the relevant period expired?
If yes: The offer can be withdrawn or its terms changed without the court’s permission. The offer can also be withdrawn automatically if its terms state so. This allows the offeror to make an offer that is time limited (CPR 36.9(4)).
If no: Any notice of withdrawal / changeduring the relevant period(CPR 36.10) will take effect at the end of the relevant period, if the offeree does not serve notice of acceptance during the relevant period. If they do serve notice of acceptance during the relevant period (despite the notice of withdrawal / change) then the offeror can either allow the acceptance or apply to the court for permission to withdraw the offer or to change its terms. This must be done within 7 days of the notice of acceptance or if earlier before the first day of the trial. The court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.
Consequences of a part 36 offer
If a part 36 offer has been made and it is not withdrawn, two things can happen:
It is accepted – you then need to know the consequences of the acceptance;
It is not accepted – you then need to know whether the court will impose a ‘penalty’ after trial because the offeree did not accept the offer, and if so, what that penalty will / might be
How to accept a Part 36 offer
Servewritten notice of acceptance on the offeror (CPR 36.11(1)) —> If the case is issued the acceptance also needs to befiledat court.
There is no prescribed form for this — a letter will be sufficient.
Important:An offer remains open for acceptance unless it has been withdrawn (CPR 36.11(2)). This remains the case even after the relevant period has expired, unless offer is expressed to be withdrawn automatically at the end of the relevant period.
Consequence of accepting a Part 36 offer.
Stay —The claim will be stayed and will not continue to trial – CPR 36.14(1)).
Settlement sum —For any Part 36 offer which is, or includes, an offer to pay / accept a single sum of money, the defendant has 14 days from acceptance to pay the settlement amount agreed unless otherwise agreed in writing (36.14(6)), failing which the claimant can enter judgment against the defendant (CPR 36.14(7)).
If the Part 36 offer does not include an offer to pay / accept a single sum of money, then in the event that a party fails to comply with whatever was agreed, the aggrieved party can apply to court to enforce the terms of the offer without the need to start separate court proceedings (CPR 36.14(8)).
Costs —The cost consequences of acceptance depend on when the offer was accepted, as shown on the next pages.
part 36 – Cost consequences of acceptance in the relevant period
If accepted before the expiry of the relevant period, the claimant is entitled to its costs of the proceedings up to the date the notice of acceptance was served on the offeror (CPR 36.13(1)).
The rationale for this cost consequence of accepting an offer is that the claimant will receive a sum of money in settlement and has therefore ‘won’ its claim and so should be entitled to its costs of the proceedings. This is the case regardless of which party made the offer to settle.
Cost consequences of acceptance outside the relevant period
If accepted after expiry of the relevant period, then (see CPR 36.13(4)):
a) The court will determine liability for costs unless the parties agree them; BUT
b) The court must, unless it considers it unjust to do so, order that—
- the claimant be awarded costs up to the date the relevant period expired; and
- the offeree to pay the offeror’s costs for the period from the date of expiry of the relevant period to the date of acceptance.
The rationale is that the claimant has ‘won’ its claim in the sense that the defendant is making a payment to the claimant, and so the claimant should have its costs up to the end of the relevant period. However, from the end of the relevant period up to when the offer was accepted, the offeree (which could be the claimant or the defendant) should pay the costs as a punishment for not accepting within the relevant period when it had the chance.
Cost consequences: special rules where the offer was made less than 21 days before trial
Different rules apply where an offeree accepts an offer but the offer was made less than 21 days before trial. In this situation, if the parties do not agree liability for costs the court must determine liability (36.13(4)).
Accepting a Part 36 offer which relates to part of a claim
It is possible to make a Part 36 offer which relates to part of a claim only (CPR 36.5(1)(d)). Special rules apply if such an offer is accepted.
If, at the time of acceptance, theclaimant abandons the remainderof the claim… the claimant will only be entitled to the costs relating to the part of the claim contained in the offer, unless the court orders otherwise (CPR 36.13(2)).
If, at the time of acceptance, theclaimant does not abandon the remainderof the claim… the liability for costs will be determined by the court, unless the parties can reach an agreement about the liability (CPR 36.13(4)).
part 36 intro
Part 36 offers must be marked as such, be in writing, state whether they apply to the whole / part of claim / any counterclaim and state a period of at least 21 days when the defendant will be liable for the claimant’s costs if accepted.
A Part 36 offer cannot be withdrawn after it is accepted, and there are limits on withdrawing it within the relevant period.
After the end of the relevant period, a Part 36 can be withdrawn.
If a Part 36 offer is accepted, the claim is stayed and the settlement sum must usually be paid within 14 days.
If the Part 36 offer was accepted within the relevant period, the claimant is entitled to its costs up to the date notice of acceptance was served on the offeror.
If the Part 36 offer was accepted after the relevant period, then the court will determine costs (unless the parties agree) but unless unjust the court must award the claimant its costs up to the expiry of the relevant period and the offeror its costs from that point onwards.
Consequences of unaccepted Part 36 offers at trial – summary
Claimants’ offers and defendants’ offers have different consequences.
You first need to consider whether an unaccepted offer triggers any consequences — this depends on comparing the sum awarded at trial to the sum contained in the offer.
If the claimant fails to beat a defendant’s offer, the penalty is the claimant being ordered to pay the defendant’s costs from the date the relevant period expired, and interest on those costs.
If the claimant does the same or better than its own offer, the penalty is the defendant being ordered to pay enhanced interest, indemnity costs and interests on those costs from the date the relevant period expired, plus a lump sum.
All these consequences are ‘unless the court considers it unjust’ to impose them.
All these consequences need to be seen in the context of the ‘normal’ costs rules in CPR 44 which will apply where Part 36 is silent or where there are no Part 36 consequences at all.
If the claimant fails to beat a defendant’s offer
, the penalty is the claimant being ordered to pay the defendant’s costs from the date the relevant period expired, and interest on those costs.
If the claimant does the same or better than its own offer
, the penalty is the defendant being ordered to pay enhanced interest, indemnity costs and interests on those costs from the date the relevant period expired, plus a lump sum.
Open claimant’s and defendant’s offers effective at the same time
What if both the claimant and the defendant have made Part 36 offers, neither of which have been accepted when the matter goes to trial? You just need to consider each offer in turn.
Consider the examples already provided where the defendant’s offer was £2mil and the claimant’s offer was £3.5mil.
If the judge awards, say, £4mil then as the claimant has won the same or more than their offer (of £3.5mil) the claimant’s offer takes effect and Part 36 will apply (CPR 36.17(4)). The defendant’s offer has no effect as the claimant has won more than the defendant’s offer (of £2mil).
If the judge awards, say, £3mil, then neither offer has any effect. The claimant’s offer (of £3.5mil) has no effect as the claimant has not won the same or more than their own offer. The defendant’s offer (of £2mil) has no effect because the claimant has not won the same or less than the defendant’s offer. Costs are likely to be awarded in this situation under the normal principles (CPR 44.2).
If the judge awards, say, £1mil, then as the claimant has won the same or less than the defendant’s offer (of £2mil), the defendant’s offer takes effect and Part 36 will apply (CPR 36.17(3)). The claimant’s offer has no effect as the claimant has not won the same or more than their own offer (of £3.5mil).
part 36 – summary
- Part 36 offers can be made by any party.
- If accepted in the relevant period, the defendant will pay the claimant’s costs.
- If accepted after the relevant period, the usual rule is that offeree pays offeror’s costs after the expiry of the relevant period.
- A part 36 offer can be withdrawn after the expiry of the relevant period, unless it has been accepted.
- If a claimant does better at trial than its own offer, it will normally receive extra costs, interest and a lump sum.
- If a claimant fails to do better at trial than a defendant’s offer, it will normally be required to pay some of the defendant’s costs, and interest on those costs.
investigating an opponent’s means
enquiry agents
company searches
registers: investigate what property someone owns and how much it might be worth
order to obtain information from a judgement debtor
only after judgment
debtor/officer attends court
standard list of questions, can be added to, and must produce documents
If they don’t attend court, they may be held to be in contempt of court.
taking control of goods
enforcement officer seizes goods
sells them
uses proceeds to satisfy debts
cannot seize goods if someone other than the judgement debtor owns/has an interest in them
basic domestic items/tools of trade are exempt
attachment of earnings orders
the court order the judgement debtor’s employer to make the appropriate the appropriate deduction from the debtor’s earnings and pay it to court for onward transmission to the judgment creditor
charging orders
a form of charge taken over land (or other specified assets) which secures a judgment debt
does not, itself, produce any money
stays in place until property sold, at which point debt paid from proceed
can apply for an order for sale
This is an attractive option where someone’s only substantial asset is their house.
A charging order can be obtained notwithstanding that someone else has an interest in the property, for example the debtor’s partner, but only the debtor’s share is effectively charged.
third party debt orders
third party must pay to the judgment creditor some or all of a debt owing to the judgement debtor by the third party
use to obtain money in a bank account
So if someone owes the judgment debtor money, they are ordered to pay it to the judgment creditor instead.
Note that if the judgment debtor has money in a bank account, this is a debt owed by the bank to the judgment debtor, and the appropriate enforcement mechanism is a third party debtor requiring the bank to pay this to the creditor instead. You do not used a taking control of goods order to seize this money.
insolvency proceedings
bankruptcy petition in relation to an individual
winding up order in relation to a company
collective remedies
stay of execution
limited grounds only
Finally, note that the court does have the power to stay, so to pause, the enforcement of a judgment / order – this is called a stay of execution. However, there are only limited circumstances in which the court will do this – the exception, rather than the rule.
enforcement – summary
- Each party should consider the opponent’s financial means at the earliest opportunity – not wait until it has an order that it wants to enforce
- Such information can come from enquiry agents, publicly available registers and other sources.
- After a judgment has been obtained, a judgment debtor can be required to attend court to answer questions and provide documents about their finances
- Enforcement methods include:
- Seizing goods
- Ordering the debtor’s employer to pay money to the creditor
- Putting a charge on the debtor’s real property
- Ordering a third party to pay a debt owed to the debtor to the creditor instead
- Ultimately, a judgment creditor may pursue a bankruptcy petition / winding up petition if a debtor does not pay a judgment debt.
appeals – summary
- A party needs permission to bring an appeal. This can be sought from the lower court orally and from the appellate court using an appellant’s notice.
- Permission will only be granted where the appeal has a real prospect of success or there is some other compelling reason why the appeal should be heard.
- An appellant’s notice sets out the basis of the appeal, and also contains the request for permission if needed.
- An appeal can be brought on the grounds that the decision of the lower court was wrong or unjust.
- The appellate court does not carry out an entirely fresh rehearing, and will not hear new evidence: it reviews the lower court’s decision.
- Appeals go up the judicial hierarchy: County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, Supreme Court.
Appeals go up the judicial hierarchy
County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, Supreme Court.
when will permission be granted for appeals?
there is no automatic right of appeal and the general rule is that permission will be required to proceed
x2
1 – apply for permission from the LOWER COURT at the time when the decision to be appealed is made – done ORALLY (parties are already before a judge)
OR
2 – make the application to the APPEAL court later – done in WRITING. within 21 days of the date of the lower court’s decision
appeal – procedure
permission granted by lower court?
yes: file appelant’s notice within period specified by the court, indicating permission already granted = appeal proceeds towards a determination
no
- file appelant’s notice within 21 days of decision, including requesting permission
- permission usually considered on paper
- if refused on paper in CC/HC, usually a right to a hearing re permission (if still no permission, appeal cannot proceed)
- if permission granted = appeal proceeds towards a determination
grounds for appeal
x2: Either that the original decision was wrong, or that it was unjust.
wrong
- error of fact
- error of law
- error in the exercise of discretion
unjust
- procedural
- other irregularity
BUT no new evidence or live witnesess
routes of appeal
see diagram in notes
one appeals to the next stage up in the judiciary, and the stages are County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, and Supreme Court.
A second appeal is always to the Court of Appeal, unless the Court of Appeal made the decision being appealed, in which case it is to the Supreme Court- the Court of Appeal can’t hear an appeal against its own decision.
appeal – permission
permission will only be granted where the court considers:
- that the appeal would have a real prospect of success; or
- that there is some other compelling reason why the appeal should be heard
This is the test for first appeals. For second appeals, so an appeal of an appeal, the test is more limiting
At the pre-trial review, what direction MUST the court give on listing?
Trial timetable
Evidence of experts
Preparation of trial bundles
Evidence of witnesses of fact
Fix the trial date
Fix the trial date
Correct
Correct. The guidance on directions the court must give on listing include that the court will fix the trial date (or confirm the date already given)( PD29). It must also give a time estimate for trial and fix the place of trial. The directions the court may give on listing include provision about: evidence (in particular that of experts or other special arrangements), a trial timetable, the preparation of trial bundles and any other matters required to prepare the case for trial.
