DR Flashcards

Question

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.

Answer 1

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.

Answer 2

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.

Answer 3

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).

Answer 4

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.

Answer 5

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).

Answer 6

The availability of High Court resources (at the time of issue). Correct. The relevant rules do not indicate that this is a potential justification.

Answer 7

…when the claim form was issued. correct

Answer 8

4 Well done. See CPR 7.5(1).

Answer 9

…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).

Answer 10

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).

Answer 11

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.

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

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.

Answer 19

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)).

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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.

Answer 24

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

Answer 25

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.

Answer 26

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).

Answer 27

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.

Answer 28

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.

Answer 29

?? 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'.

Answer 30

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)).

Answer 31

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.

Answer 32

Within 14 days after service of the claim form Correct (CPR 10.3).

Answer 33

Within 14 days after service of the particulars of claim. Correct (CPR 10.3).

Answer 34

Within 14 days after service of the particulars of claim. Correct (CPR 15.4).

Answer 35

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).

Answer 36

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).

Answer 37

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).

Answer 38

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).

Answer 39

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.

Answer 40

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.

Answer 41

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.

Answer 42

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.

Answer 43

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).

Answer 44

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.

Answer 45

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)).

Answer 46

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).

Answer 47

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.

Answer 48

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).

Answer 49

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.

Answer 50

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!

Answer 51

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).

Answer 52

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.

Answer 53

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.

Answer 54

‘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.

Answer 55

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.

Answer 56

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.

Answer 57

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.

Answer 58

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.

Answer 59

CPR 20.6 Correct. D1’s claim against D2 is a claim against an existing party for a contribution or indemnity.

Answer 60

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.

Answer 61

TO DO LAST Q OF Multiple Causes of Action, Counterclaims and Additional Claims

Answer 62

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.

Answer 63

The amendment is ‘desirable’. Correct. This is the main test as set out in CPR 19.2.

Answer 64

Be verified by a statement of truth unless the court orders otherwise. Correct. See CPR 22.1(2).

Answer 65

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.

Answer 66

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.

Answer 67

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).

Answer 68

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.

Answer 69

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.

Answer 70

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)

Answer 71

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.

Answer 72

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.

Answer 73

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).

Answer 74

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.

Answer 75

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).

Answer 76

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.

Answer 77

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.

Answer 78

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.

Answer 79

a reasonable proportion of the likely amount of the final judgment Correct. See CPR 25.7.

Answer 80

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.

Answer 81

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.

Answer 82

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.

Answer 83

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.

Answer 84

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.

Answer 85

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.

Answer 86

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.

Answer 87

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.

Answer 88

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.

Answer 89

Rule of law; Confidence in profession ; Independence ; Integrity; Honesty; Diversity; Best interest

Answer 90

costs and stay proceedings until pre-action is complied with

Answer 91

dated issue number sealed

Answer 92

CPR 20.5 (counterclaim against the defendant and additional party) CHECK??

Answer 93

county court

Answer 94

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

Answer 95

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.

Answer 96

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).

Answer 97

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.

Answer 98

…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.

Answer 99

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.

Answer 100

At the end of fast-track trials and at the end of interim hearings lasting not more than one day. correct

Answer 101

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’.

Answer 102

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).

Answer 103

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.

Answer 104

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.

Answer 105

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.

Answer 106

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.

Answer 107

28 days (provided this does not put a hearing date at risk). correct

Answer 108

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

Answer 109

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.

Answer 110

£10,000 Correct. Well done! This is the correct limit (CPR 26.6).

Answer 111

False Correct Correct. The court will only order an allocation hearing if it considers it necessary (CPR 26.5(4)).

Answer 112

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)).

Answer 113

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.

Answer 114

…can only recover limited fixed costs, court fees and witness expenses from an opponent. correct

Answer 115

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.

Answer 116

Disclosure 4 Exchange of witness statements 10 Exchange of experts' reports 14 Filing of pre-trial checklists 22 Trial date / period 30

Answer 117

Not less than 14 days before the first CMC Correct. (CPR 31.5)

Answer 118

At least 7 days before any CMC Correct. The parties should attempt to agree them first. (CPR 29.4)

Answer 119

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)).

Answer 120

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.

Answer 121

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'.

Answer 122

The monetary value of the claim is less than £50,000 or if the party's budgeted costs do not exceed £25,000. correct

Answer 123

Estimated opponent's costs. Correct. Your opponent will set out their incurred and estimated costs in their own budget.

Answer 124

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.

Answer 125

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.

Answer 126

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).

Answer 127

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.

Answer 128

They will be treated as having filed a budget comprising only the applicable court fees. Correct Correct! Well done (CPR 3.14).

Answer 129

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.

Answer 130

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)).

Answer 131

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.

Answer 132

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.

Answer 133

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.

Answer 134

When giving directions on allocation, at a case management conference, or on a party's application. Correct. These are all possibilities.

Answer 135

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.

Answer 136

At least 14 days before the CMC. Correct. (CPR 31.5(3)).

Answer 137

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.

Answer 138

Standard disclosure. Correct – see the standard fast track directions (PD28).

Answer 139

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.

Answer 140

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'.

Answer 141

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.

Answer 142

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.

Answer 143

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).

Answer 144

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.

Answer 145

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

Answer 146

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.

Answer 147

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).

Answer 148

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.

Answer 149

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.

Answer 150

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.

Answer 151

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.

Answer 152

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.

Answer 153

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.

Answer 154

is more than a mere 'witness' or bystander Correct Correct.

Answer 155

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.

Answer 156

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].

Answer 157

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.

Answer 158

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'.

Answer 159

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.

Answer 160

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.

Answer 161

D — substantial amount of money Test for interim payment in CPR

Answer 162

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.

Answer 163

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.

Answer 164

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.

Answer 165

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.

Answer 166

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!

Answer 167

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.

Answer 168

An application for a search order. Correct Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.

Answer 169

An application for a freezing order. Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.

Answer 170

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.

Answer 171

…state on oath… Correct. Well done!

Answer 172

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).

Answer 173

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.

Answer 174

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.

Answer 175

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).

Answer 176

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’.

Answer 177

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.

Answer 178

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.

Answer 179

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).

Answer 180

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.

Answer 181

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.

Answer 182

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.

Answer 183

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.

Answer 184

14 days Correct Correct. (CPR 36.14).

Answer 185

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.

Answer 186

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).

Answer 187

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.

Answer 188

All the other answers are consequences. Correct. All the other answers are consequences (CPR 36.17).

Answer 189

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.

Answer 190

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.

Answer 191

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.

Answer 192

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.

Answer 193

Almost certain Correct Well done. The vast majority of cases are suitable for ADR, if ADR is appropriately chosen and timed.

Answer 194

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.

Answer 195

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.

Answer 196

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.

Answer 197

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.

Answer 198

The claimant Correct Correct. Discontinuance is available to a claimant, and only a claimant.

Answer 199

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).

Answer 200

Filing a notice at court and serving it on all other parties. Correct

Answer 201

Upon service of the notice of discontinuance Correct. (CPR 38.5(1)).

Answer 202

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)).

Answer 203

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).

Answer 204

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.

Answer 205

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

Answer 206

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.

Answer 207

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.

Answer 208

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.

Answer 209

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.

Answer 210

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).

Answer 211

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.

Answer 212

Claimant Correct (CPR 39.5).

Answer 213

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.

Answer 214

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.

Answer 215

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).

Answer 216

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.

Answer 217

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.

Answer 218

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)

Answer 219

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.

Answer 220

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.

Answer 221

…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.

Answer 222

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.

Answer 223

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.

Answer 224

A petition for bankruptcy can be issued against an individual when the judgment debt against them is more than £5,000. Correct Correct

Answer 225

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)).

Answer 226

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.

Answer 227

High Court Judge. Correct. This is the next level of judge in the court hierarchy. Also see 52A PD 3.5.

Answer 228

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'.

Answer 229

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.

Answer 230

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'.

Answer 231

Monday 19 November Correct. (CPR 40.11).

Answer 232

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.

Answer 233

Which courts can determine a dispute. correct

Answer 234

Whether a dispute is determined according to the law of England and Wales, or some other country's law.

Answer 235

The two things should be considered separately. correct

Answer 236

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).

Answer 237

Correct. This is how an exclusive jurisdiction clause operates. A contracting state has jurisdiction and nowhere else has jurisdiction.

Answer 238

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.

Answer 239

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

Answer 240

…may grant permission to serve out of the jurisdiction. Correct Correct – the court has a discretion.

Answer 241

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.

Answer 242

6 Correct. Well done – see CPR 7.5(2).

Answer 243

This is indicated on a form filed when the claim is issued. Correct – Form N510.

Answer 244

This varies, depending primarily on the country in which service takes place. Correct. Well done.

Answer 245

…serving by a method not generally permitted by the CPR. Correct. See CPR 6.15.

Answer 246

…the usual methods of service are impossible / ineffective. Correct Correct. See CPR 6.15.

Answer 247

This is very unlikely unless the defendant is aware of the proceedings. Correct. See CPR 6.16.

Answer 248

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.

Answer 249

14 Correct. This is the correct procedure. See CPR 11(4).

Answer 250

… the court is, for practical purposes, given jurisdiction. Correct Correct. Well done!

Answer 251

…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.

Answer 252

…contracts entered into on or after 17 December 2009 Correct. Well done.

Answer 253

…whether the parties have made a choice of law. Correct. Well done. See Article 3.

Answer 254

…the country where the seller habitually resides. Correct. See Article 4(1).

Answer 255

…events giving rise to damage which occur on or after 10 January 2009 Correct. Well done.

Answer 256

…whether the parties have made a choice of law. Correct. Well done. See Article 14.

Answer 257

…the country where the damage occurs. Correct. See Article 4(1).

Answer 258

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.

Answer 259

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.

Answer 260

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.

Answer 261

[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

Answer 262

[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"

Answer 263

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.

Answer 264

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.

Answer 265

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.

Answer 266

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.

Answer 267

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.

Answer 268

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.

Answer 269

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.

Answer 270

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.

Answer 271

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).

Answer 272

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).

Answer 273

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.

Answer 274

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.

Answer 275

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.

Answer 276

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.

Answer 277

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.

Answer 278

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.

Answer 279

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)).

Answer 280

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.

Answer 281

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.

Answer 282

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.

Answer 283

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.

Answer 284

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.

Answer 285

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.

Answer 286

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.

Answer 287

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.

Answer 288

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.

Answer 289

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).

Answer 290

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.

Answer 291

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).

Answer 292

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.

Answer 293

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)).

Answer 294

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.

Answer 295

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.

Answer 296

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.

Answer 297

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.

Answer 298

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.

Answer 299

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.

Answer 300

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.

Answer 301

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.

Answer 302

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).

Answer 303

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.

Answer 304

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.

Answer 305

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.

Answer 306

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.

Answer 307

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.

Answer 308

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.

Answer 309

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.

Answer 310

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.

Answer 311

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.

Answer 312

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.

Answer 313

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.

Answer 314

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.

Answer 315

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.

Answer 316

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.

Answer 317

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.

Answer 318

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.

Answer 319

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.

Answer 320

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.

Answer 321

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.

Answer 322

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).

Answer 323

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.

Answer 324

You should cease to act.

Answer 325

The CPR are the rules that pervade all of litigation. They must be complied with, or sanctions might be imposed.

Answer 326

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 .

Answer 327

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.

Answer 328

limitation period case analysis funding conduct

Answer 329

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.

Answer 330

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.

Answer 331

legal aid funding before/after the event insurance third party funding conditional fee arrangement damages-based agreements private funding professional funding

Answer 332

letter of claim response disclosure of key documents negotiations and/or settlement proposals taking stock before issuing proceedings

Answer 333

- 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.

Answer 334

high court county court - PI <50k - non PI <100k other claims, consider - value -complexity - importance to the public

Answer 335

the court can transfer the proceedigns to the right court BUT there could be a costs sanctions

Answer 336

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.

Answer 337

claim form other documents

Answer 338

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.

Answer 339

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.

Answer 340

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.

Answer 341

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.

Answer 342

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)

Answer 343

to serve this on the defendant.

Answer 344

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.

Answer 345

12.00 midnight on the calendar day four months after the date of issue of the claim form

Answer 346

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.

Answer 347

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.

Answer 348

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 .

Answer 349

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

Answer 350

14 days of deemed service of the particulars of claim

Answer 351

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.

Answer 352

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.

Answer 353

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.

Answer 354

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.

Answer 355

- 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.

Answer 356

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)

Answer 357

claimant - claim form - particulars of claim - (reply) - (defence to counterclaim) defendant - defence - (counterclaim)

Answer 358

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.

Answer 359

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.

Answer 360

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.

Answer 361

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.

Answer 362

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.

Answer 363

- 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.

Answer 364

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.

Answer 365

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.

Answer 366

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.

Answer 367

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 .

Answer 368

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.

Answer 369

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.

Answer 370

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 .

Answer 371

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

Answer 372

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.

Answer 373

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.

Answer 374

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.

Answer 375

* 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.

Answer 376

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

Answer 377

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.

Answer 378

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.

Answer 379

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

Answer 380

Budget + disclosure report + draft directions + budget discussion report

Answer 381

directions + costs management order

Answer 382

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.

Answer 383

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.

Answer 384

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.

Answer 385

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.

Answer 386

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.

Answer 387

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.

Answer 388

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.

Answer 389

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.

Answer 390

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.

Answer 391

- 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.

Answer 392

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.

Answer 393

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

Answer 394

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.

Answer 395

* 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'.

Answer 396

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.

Answer 397

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.

Answer 398

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.

Answer 399

stating (to another party) that a document exists or has existed

Answer 400

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.

Answer 401

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

Answer 402

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.-

Answer 403

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)

Answer 404

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.

Answer 405

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.

Answer 406

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.

Answer 407

a doc whose purpose is a genuine attempt to settle a dispute

Answer 408

- 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.

Answer 409

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

Answer 410

no oral evidence at hearing of interim application

Answer 411

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

Answer 412

- 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.

Answer 413

documentary evidence: disclosure witness evidence: expert and witness of act

Answer 414

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.

Answer 415

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.

Answer 416

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.

Answer 417

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.

Answer 418

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.

Answer 419

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.

Answer 420

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.

Answer 421

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.

Answer 422

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 .

Answer 423

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.

Answer 424

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.

Answer 425

- 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.

Answer 426

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

Answer 427

better relationships less expensive privacy/ confidentiality saves time flexibility of outcomes

Answer 428

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?)

Answer 429

- 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

Answer 430

Part 36 offers can be made by either party and they can be made at any stage of the proceedings.

Answer 431

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.

Answer 432

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 its discretion 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.

Answer 433

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.

Answer 434

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.

Answer 435

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 / change during 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.

Answer 436

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

Answer 437

Serve written notice of acceptance on the offeror (CPR 36.11(1)) —> If the case is issued the acceptance also needs to be filed at 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.

Answer 438

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.

Answer 439

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.

Answer 440

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.

Answer 441

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)).

Answer 442

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, the claimant abandons the remainder of 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, the claimant does not abandon the remainder of 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)).

Answer 443

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.

Answer 444

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.

Answer 445

, 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.

Answer 446

, 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.

Answer 447

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).

Answer 448

- 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.

Answer 449

enquiry agents company searches registers: investigate what property someone owns and how much it might be worth

Answer 450

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.

Answer 451

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

Answer 452

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

Answer 453

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.

Answer 454

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.

Answer 455

bankruptcy petition in relation to an individual winding up order in relation to a company collective remedies

Answer 456

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.

Answer 457

- 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.

Answer 458

* 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.

Answer 459

County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, Supreme Court.

Answer 460

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

Answer 461

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

Answer 462

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

Answer 463

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.

Answer 464

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

Answer 465

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.