Interim judgements MCQs

Question 1

Sally was injured at Cardiff Zoo when a crocodile ran up the side of its pit and bit her in the face as she was leaning over to take a photograph of it. She issued and served proceedings against Cardiff Zoo for damages for personal injury including nervous shock. Cardiff Zoo has failed to file an acknowledgment of service or a defence within the relevant time limit.

Sally now wishes to obtain default judgment.

Which ONE of the following statements is CORRECT?

Sally will not be entitled to default judgment because her claim is for an amount that is yet to be decided.

Sally must apply to the court for default judgment, in accordance with CPR Part 23.

Sally can obtain default judgment by filing a request in the relevant practice form.

The court must set aside any default judgment if Cardiff Zoo demonstrates a real prospect of successfully defending the claim or there is some other good reason why the judgment should be set aside or why Cardiff Zoo should be allowed to defend the claim.

Answer 1

Sally can obtain default judgment by filing a request in the relevant practice form.

Sally is entitled to default judgment under CPR rule 12.3.
Sally’s claim is a personal injury claim: it is a claim for “an amount of money to be decided by the court”. She may therefore obtain a default judgment by filing a request in the relevant practice form: CPR rule 12.4(1)(b). The default judgment would be in relation to liability, and then damages would be assessed by the court.
Therefore, it is incorrect to say that Sally must apply to the court for default judgment under CPR Part 23.
As judgment was correctly entered, it is also incorrect to say that the court MUST set it aside under CPR rule 13.3. The court MAY set it aside under CPR rule 13.3.

Question 2

Freddie was injured whilst at a go-kart track and issued proceedings for personal injury against the owners, Joyrides Ltd (“Joyrides”), who passed the claim to their insurer, Gotcha. Freddie claims that the go-kart he was driving malfunctioned and caused him to skid off the track into the barriers, injuring his leg. Gotcha assured Joyrides that Gotcha was dealing with the claim on Joyrides’ behalf but Joyrides has recently found out that default judgment has been entered against the company for failing to file a defence. Joyrides has also heard that Gotcha are in financial difficulties and may not be able to pay out on the insurance policy. Joyrides are therefore worried that Gotcha will not be able satisfy any potential judgment entered against Joyrides and that the company will be forced to pay any judgment itself. Joyrides has a draft expert report which shows that the go-kart did not malfunction and that the accident was caused as a result of Freddie’s bad behaviour. This expert evidence, together with witness evidence which supports the fact that Freddie was messing around and driving dangerously, suggests that Joyrides has a real prospect of succeeding in their defence to the claim. Unfortunately, due to other commitments, the expert will not be able to make his report final for at least 4 months. Freddie entered default judgment against Joyrides last week but he has failed to file a certificate of service and no response pack was served with the claim form and Particulars of Claim. Which of the following is the BEST advice to give to Joyrides?

Wait to see what happens with the financial position of Gotcha and then at a later date rely on the technical failure of Freddie (not filing a certificate of service and not including a response pack with the claim form and Particulars of Claim) as grounds to set aside the default judgment, as these will outweigh any delay by Joyrides in making the application to set aside default judgment.

Joyrides should wait until the final expert’s report has been received and then make the application to set aside the default judgment, as this will be needed to show a real prospect of successfully defending the claim.

Leave Gotcha to apply to set aside the default judgment and blame any delay on their actions as Joyrides’ representatives.

Joyrides should make an application to set aside the default judgment as soon as possible, supported by a witness statement, exhibiting a draft defence.

Answer 2

Joyrides should make an application to set aside the default judgment as soon as possible, supported by a witness statement, exhibiting a draft defence.

This is the best advice. One of the factors to which the court must have regard in considering whether to set aside or vary a default judgment is whether the applicant made the application to set aside promptly. See CPR rule 13.3(2) and paragraph 13.3.3 of the commentary of the White Book 2022. Promptness will always be a factor of considerable significance. See also CPR rule 13.4(3), which states that applications under rule 13.3 must be supported by evidence. As to the failures regarding a certificate of service and a response pack, there have been cases where the defendant could not rely on the alleged technical failures of the claimant in an application under CPR rule 13.3. See paragraph 13.3.1 of the commentary of the White Book 2020 and the principle set out in the case of Henriksen v Pires [2011] EWCA Civ 1720.
As to whether Joyrides can blame Gotcha, Joyrides cannot rely on the default of its representative as a reason for not acting promptly. The duty to act promptly is on the defendant personally. See paragraph 13.3.3 of the commentary of the White Book 2022 and the principle set out in the case of Mullock v Price [2009] EWCA Civ 1222.
As to whether Joyrides should wait until the final expert’s report has been received before applying to set aside the default judgment, a delay of 4 months is likely to be too long. See paragraph 13.3.3 of the commentary of the White Book 2022, where it states that a delay of 59 days in making an application under CPR Part 13 “was very much at the outer limit of what could possibly be acceptable”. There seems to be enough evidence, in the form of witness evidence and the draft expert evidence, to support an application to set aside default judgment and to satisfy the test that there is a real prospect of successfully defending the claim.

Question 3

Jones Limited issued a claim against Woolly Jumpers Limited claiming £20,000, the price of goods sold and delivered. Woolly Jumpers Limited wishes to defend the claim.

Which ONE of the following statements is WRONG?

If Woolly Jumpers Limited fails to deal with an allegation made in the Particulars of Claim, Woolly Jumpers Limited will be taken to admit it, unless the allegation relates to the amount of money being claimed by Jones Limited or unless the allegation is inconsistent with the nature of the case set out in the Defence.

If Jones Limited decides not to file a Reply, Jones Limited will not be taken to admit matters raised in the Defence of Woolly Jumpers Limited.

If Woolly Jumpers Limited denies any of the allegations made against it, Woolly Jumpers Limited must, in its Defence, state its reasons for doing so and must state its own version of events, if different from that given by Jones Limited.

If Woolly Jumpers Limited admits any part of the claim, Woolly Jumpers Limited does not need to state this in its Defence, as the Defence must contain only those allegations which Woolly Jumpers Limited denies

Question 4

In which ONE of the following claims would default judgment be available under Part 12?

A claim in admiralty proceedings.

A claim for the court’s approval of the settlement, prior to the commencement of proceedings, of seven-year-old Jenny’s claim for damages for personal injury arising from an accident at the local swimming baths.

A breach of contract claim where the defendant has not filed a defence within the time limit, but has applied for summary judgment against the claimant and the application has not yet been disposed of.

A claim for an injunction.

Answer 4

A claim for an injunction.

There is no rule that says you cannot get default judgment in an injunction case. The only requirement is that it is obtained by making an application, rather than by simply filing a request. See CPR rules 12.4(1) and 12.4(2).
Jenny’s claim for the court’s approval of the settlement will be dealt with under CPR Part 8. See CPR rule 21.10 and paragraph 3.1 of Practice Direction 8A. Default judgment is not available for this type of claim. See CPR rule 12.2(b).
A claimant may not obtain default judgment if the defendant has applied for summary judgment and the application has not been disposed of. See CPR rule 12.3(3)(a)(ii).

Question 5

Bernard has made an application to court for an extension of time to serve a witness statement. The application was made without serving a copy of the application notice on the respondent, Playfair Ltd (“Playfair”). Bernard did this with the permission of the court because of exceptional urgency. His application was successful but he remains slightly concerned that it was obtained without notice and he is now seeking advice on the status of the order and what he should do with it.

Which ONE of the following options is the BEST ADVICE to give Bernard in these circumstances?

Bernard should serve a copy of the order, the application notice and any supporting evidence on Playfair. Provided that Bernard serves these documents on Playfair within 7 days of the date of the order, Bernard will comply with his obligations to Playfair and to the court.

The order must contain a statement of Playfair’s right to apply to have the order set aside or varied. Bernard should serve a copy of the order, the application notice and any supporting evidence on Playfair. Bernard should also be advised that any such application by Playfair must be made within 7 days of the service of the order on it.

The order must contain a statement of Playfair’s right to apply to have the order set aside or varied. Bernard should serve a copy of the order, the application notice and any supporting evidence on Playfair. Bernard should also be advised that any such application by Playfair must be made within 28 days of the service of the order on it.

Bernard should serve a copy of the order, the application notice and any supporting evidence on Playfair. Bernard should also be advised that Playfair may appeal against the order.

Answer 5

The order must contain a statement of Playfair’s right to apply to have the order set aside or varied. Bernard should serve a copy of the order, the application notice and any supporting evidence on Playfair. Bernard should also be advised that any such application by Playfair must be made within 7 days of the service of the order on it.

This is the best advice. It accurately reflects the provisions of CPR rules 23.9 and 23.10 and therefore correctly advises Bernard of what should be done with the order and what Playfair must do.

Question 6

Your client is pursuing a breach of contract claim. The defendant has applied to strike out that claim twice. Both applications have been dismissed, and when the court dismissed the second application it also stated that it considered the application to be totally without merit.

In the circumstances what would be the CORRECT advice as to how the courts findings would be reflected in the order?

The court must make a costs order against the defendant.

The court must make a civil restraint order against the defendant.

The court’s order must record the fact that the court considers the defendant’s application to be totally without merit.

The court must make a costs order on the indemnity basis against the defendant.

Answer 6

The court’s order must record the fact that the court considers the defendant’s application to be totally without merit.

This is the best advice. Please refer to CPR rule 23.12. The order must record the fact that the application is totally without merit.
Although the court must consider whether it is appropriate to make a civil restraint order, the court is not required to make a civil restraint order.
The court has a discretion about what order, if any, to make as to costs.

Question 7

You act for Lavender Limited (“ Lavender”) who obtained an unless order in proceedings against Erin Margot Limited (“EML”) The unless order stated that, unless EML filed and served witness statements upon which it intended to rely at trial by 4pm last Wednesday, its defence shall be struck out. EML failed to file or serve anything. Lavender’s claim was for £24,000.

Advise Lavender on what it needs to do now in order to obtain judgment.

File a request for judgment stating that the right has arisen as a result of the court’s order not having been complied with.

Make an application under Part 23 for judgment.

Write to the defendant enclosing a copy of the unless order and ask for payment within days.

Do nothing – the unless order alone is sufficient to obtain judgment.

Answer 7

File a request for judgment stating that the right has arisen as a result of the court’s order not having been complied with.

This is the correct advice as it reflects CPR rules 3.5(2) and 3.5(4).
Note that, as the claim is for a specified sum of £24,000, CPR rule 3.5(2) is applicable, and a request for judgment (rather than an application under Part 23) is sufficient. Where CPR rule 3.5(2) does not apply, an application under Part 23 is required in order to obtain judgment: CPR rule 3.5(5).

Question 8

Susan is the claimant in an action for breach of contract against Harry. You are asked to advise on whether there are any restrictions on when she can apply for summary judgment. Which ONE of the following statements is correct?

Susan must wait until Harry has filed a defence before she can apply for summary judgment unless a practice direction provides otherwise or the court gives permission.

Susan can apply for summary judgment at any stage unless a practice direction provides otherwise or the court gives permission.

Susan must wait until Harry has filed an acknowledgment of service or a defence unless a practice direction provides otherwise or the court gives permission.

Susan is never obliged to wait for Harry to file an acknowledgement of service or a defence before applying for summary judgment. However, it is good practice to wait for a defence to be served.

Answer 8

Susan must wait until Harry has filed an acknowledgment of service or a defence unless a practice direction provides otherwise or the court gives permission.

See CPR rule 24.4(1), which applies to summary judgment applications by a claimant. The claimant may not apply for summary judgment until the defendant has filed an acknowledgment of service or a defence, unless the court gives permission or a practice direction provides otherwise.
It is therefore wrong to say that Susan can apply for summary judgment at any stage, or that she is never obliged to wait for Harry to file an acknowledgment of service or a defence.
Since the claimant may apply for summary judgment after the defendant has filed an acknowledgment of service, it is wrong to say that Susan must wait until Harry has filed a defence (although it is good practice to do so – having sight of the defence will make it much easier for the claimant to determine whether she can satisfy the test for summary judgment).

Question 9

Ruth purchased an own brand cafetiere from AZTEC supermarket (“AZTEC”) . When using it for the first time she pushed the plunger down and the glass of the cafetiere shattered. Boiling hot coffee spilled out, burning Ruth’s legs and shards of glass cut her feet. Ruth decided to bring a claim for personal injury against AZTEC. Ruth is a wealthy farmer and has plenty of money to fund proceedings. She followed the relevant pre-action protocol and eventually issued proceedings against AZTEC.

AZTEC made an application for summary judgment. It based the application on its expert evidence (obtained during the pre-action stage). Its expert tested the glass of the cafetiere and concluded that it was safe and withstood appropriate temperatures. Accordingly, AZTEC were of the view that Ruth had filled the product with water straight from the kettle, contrary to the instructions which caution users to wait a few minutes for the temperature to drop. Ruth maintained that she had used it properly. The Judge hearing the case formed the view that it was possible that the claim may succeed when the court eventually hears evidence about what Ruth did on the day in question but that, based on the expert evidence, it was improbable that it would.

What is the most likely order the court will make in relation to AZTEC’s application for summary judgment?

The court is most likely to dismiss the claim.

The court is most likely to give judgment on the claim.

The court is most likely to make a conditional order.

The court is most likely to dismiss the application.

Answer 9

The court is most likely to make a conditional order.

This is the most likely outcome on this set of facts. Given the Judge’s view that it is POSSIBLE but IMPROBABLE that the claim may succeed, this is the appropriate order to make. In the light of the fact that the claimant has plenty of money, the court may consider it more than appropriate – in these specific circumstances – to order that she pay a sum of money into court, failing which her claim will be dismissed: see CPR rule 24.2, paragraph 24.6.6 - 24.6.7 of the commentary in the White Book 2023, and Practice Direction 24 paragraphs 4 and 5. Given the Judge’s view that it was improbable that the claim would succeed, the court is not likely at this stage in the proceedings to give judgment in favour of the claimant on the claim. The Judge is unlikely at this stage in the proceedings to dismiss the claim because the Judge clearly considers it important to hear evidence at trial. Whilst dismissal of the application is a strong possibility (given that the Judge is minded to let the matter proceed to trial), a conditional order is the more likely outcome. A conditional order better reflects the Judge’s view that it is improbable that the claim will succeed.

Question 10

You represented Pretty Products Ltd in a breach of contract case against Michel in which Pretty Products Ltd was awarded judgment last month. Michel has now issued a further claim against Pretty Products Ltd, in which he simply writes in the claim form: “I want compensation for all the hassle Pretty Products Ltd caused me in the previous court case; the decision was stupid.”

Which of the following statements contains the BEST advice to give to Pretty Products Ltd in the circumstances?

Pretty Products Ltd should apply for summary judgment against Michel. An application to strike out could be made but it is not worthwhile to apply for strike out as well.

Pretty Products Ltd should apply to strike out the claim on the ground that Michel has failed to comply with the rules on claim forms.

Pretty Products Ltd should apply to strike out the claim on the ground that it discloses no reasonable ground for bringing a claim. There is no other basis on which to apply to the court to try to prevent the matter proceeding.

Pretty Products Ltd should apply to strike out the claim on the ground that it discloses no reasonable ground for bringing the claim and on the alternative ground that the claim is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. Pretty Products Ltd could also apply for summary judgment as well.

Answer 10

Pretty Products Ltd should apply to strike out the claim on the ground that it discloses no reasonable ground for bringing the claim and on the alternative ground that the claim is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. Pretty Products Ltd could also apply for summary judgment as well.

This is the best advice. See CPR rules 3.4(2)(a) AND 3.4(2)(b), as well as 24.2.
Given the reference to “all the hassle” allegedly caused in a previous court case, it is very likely that there no reasonable grounds for bringing this claim: CPR rule 3.4(2)(a).
In addition, it is very likely that Michel’s claim would (amongst other arguments) be viewed as an attempt to re-litigate or mount a collateral attach on and earlier decision, thereby justifying the application on the additional ground in CPR rule 3.4(2)(b).
It is also possible to argue that the claimant has no real prospect of succeeding on the claim and that there is no other compelling reason why the case should be disposed of at trial, hence making it appropriate to apply under CPR rule 24.2 as well. There is often an overlap between these types of application.
Any technical non-compliance with the rules on claim forms is not the issue raised by this question.

Question 11

What is the correct advice to give regarding when to make and serve an application to strike out another party’s statement of case?

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 14 days before the hearing.

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 3 days before the hearing.

The application should be made at least 3 days after it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 3 days before the hearing.

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must only be served 3 days before the hearing.

Answer 11

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 3 days before the hearing.

This is the correct advice. See paragraph 2.7 of Practice Direction 23A and CPR rule 23.7.
Please note that, whilst the court’s power to strike out a statement of case is set out in CPR rule 3.4, the rules that apply to the making and serving of a strike out application are the general rules under Part 23 that apply to most types of application.

Question 12

You act for Paul Turner, who is a self-employed builder. He was the defendant in a claim brought by Mr and Mrs Jones, at whose house Paul had worked. They claimed that the quality of his work was so poor that they had to pay to have it rectified. Paul filed a defence late, which simply set out that Mr and Mrs Jones had treated him badly while he worked there and that their plan had always been simply to sue him and make him bankrupt.

Judgment was entered for Mr and Mrs Jones but Paul cannot remember if this was following their application to strike his claim out or enter summary judgement: they had applied for both.

Paul has paid on a direct-access basis for your advice. He wants to know if the court’s granting of summary judgment and/or strike out is contrary to his human rights on the basis that he has a right to a fair trial. What is the best advice to give him?

Summary judgment and strike out are both compliant with Article 6(1) on the basis that the court must resolve issues at an early stage and have the need to save time and expense as its primary purpose.

Summary judgment is compliant with Article 6(1) on the basis that a respondent has the opportunity to be heard and to put their case across (through written evidence or orally at a hearing). There is also the opportunity to appeal, set aside or vary an order made. Strike out is not inherently contrary to the right of access to the court for similar reasons. There are a number of less draconian options open to the court; and in any event the courts are encouraged to resolve issues at an early stage of proceedings to save time and expense.

Summary judgment is compliant with Article 6(1) on the basis that a respondent has the opportunity to be heard and to put their case across (through written evidence or orally at a hearing). There is also the opportunity to appeal, set aside or vary an order made. Strike out, however, is inherently contrary to the right of access to the court as Article 6(1) applies to “genuine and serious” disputes about civil rights and obligations and, unlike summary judgment, strike out does not involve any consideration of the merits of a case.

Strike out and summary judgment are inherently contrary to the right of access to a court. Judgment should only be entered when there has been an opportunity to call and test live evidence.

Answer 12

Summary judgment is compliant with Article 6(1) on the basis that a respondent has the opportunity to be heard and to put their case across (through written evidence or orally at a hearing). There is also the opportunity to appeal, set aside or vary an order made. Strike out is not inherently contrary to the right of access to the court for similar reasons. There are a number of less draconian options open to the court; and in any event the courts are encouraged to resolve issues at an early stage of proceedings to save time and expense.

This is the best advice to give Paul. This advice is up to date and comprehensive. See paragraphs 3.4.1 and 3.4.2 of the commentary in the White Book.

Question 13

David Kane is a taxi driver and he was injured in a road traffic accident in May 2020. His vehicle collided with a van being driven by Rob Li. David claims to have suffered whiplash and damage to his car. He claims he had to hire a replacement vehicle on credit. He is claiming £35,000 in total. He issued his claim in June 2022. His case has been allocated to the Fast Track. The defendant’s insurance company has filed a defence, in time, which sets out complex legal argument about the validity of the credit-hire agreement that was entered into by the claimant.

The defendant’s insurance company has made an application for summary judgment, contending that the claimant has no real prospect of succeeding on that issue and that there is no other compelling reason why it should be disposed of at trial. The interim application is listed for November 2022. You act for the claimant, who informs you that he might be able to get hold of evidence to rebut the argument being made by the defendant but that he cannot be sure of this until the date of the trial, in January 2023. You form the view that the legal argument about the credit hire agreement is likely to take about 4 hours and that David would probably have to give evidence.

David wants to know whether summary judgment is likely to be entered against him. What is the best advice to give David?

The court should always allow a case to proceed to trial if there is the possibility of further evidence. It is important that all information that may assist to resolve an issue is considered fully.

It is more difficult to apply the “no real prospect of success” test on an application for summary judgment than to try the case in its entirety and so the application will fail, but the need to call oral evidence is irrelevant.

Since this legal argument is complex and requires the calling of live evidence, it is unlikely that the application for summary judgment will be successful.

Given that hearing this application would not take as long as the trial and could save time at the trial, then as long as the parties have the opportunity to address the issue the court will likely decide the issue.

Answer 13

Since this legal argument is complex and requires the calling of live evidence, it is unlikely that the application for summary judgment will be successful.

This is the best advice. The factors referred to are relevant and the outcome is most likely. See the commentary in paragraph 24.2.3 in White Book and the principles established by ICI Chemicals v TTE Training Ltd [2007] EWCA Civ 725. The court should not allow a case to proceed to trial simply because there is a possibility of some further evidence arising. However, if the issue about the credit hire is a complex question of law or fact (the question refers to “complex legal argument”), the determination of which necessitates a trial of the issue having regard to all of the evidence, then summary judgment should probably not be given. Of course, the court retains a discretion and ultimately it is for the court to decide.

Question 14

Freya wishes to apply for summary judgment against Lucy. Which ONE of the following statements sets out the CORRECT time period for serving the application on Lucy?

At least 21 days before the hearing.

At least 3 days before the hearing.

At least 7 days before the hearing.

At least 14 days before the hearing.

Answer 14

At least 14 days before the hearing.

The respondent must be given at least 14 days’ notice of the date fixed for the hearing. See CPR rule 24.4(3). Do not get confused with the time limits for the fling and serving of evidence in CPR rule 24.5.

Question 15

What is the correct advice to give regarding when to make and serve an application to strike out another party’s statement of case?

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must only be served 3 days before the hearing.

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 3 days before the hearing.

The application should be made at least 3 days after it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 3 days before the hearing.

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 14 days before the hearing.

Answer 15

The application should be made as soon as it becomes apparent that it is necessary or desirable to make it. A copy of the application notice must be served as soon as practicable after it is filed and at least 3 days before the hearing.

This is the correct advice. See paragraph 2.7 of Practice Direction 23A and CPR rule 23.7.
Please note that, whilst the court’s power to strike out a statement of case is set out in CPR rule 3.4, the rules that apply to the making and serving of a strike out application are the general rules under Part 23 that apply to most types of application.

Question 16

You represent a respondent to an application for an interim injunction to stop a number of antiques of value being sold. You have been given sufficient notice of the application. Your client readily agrees not to sell any of the items in question until the matter has been decided by the courts, and is prepared to offer appropriate and full undertakings to the court. Your client wishes to keep costs to a minimum and wishes to maintain good relations with the claimant, his mother.

What is the best course of action?

Agree reasonable undertakings in similar terms to the injunction being sought.

Do not attend so that the interim order application has to be adjourned.

Sell the items anyway.

Contest the interim injunction on the basis that it might not be granted.

Answer 16

Agree reasonable undertakings in similar terms to the injunction being sought.

This is the best course of action. See paragraph 25.1.14.1 of volume 1 of the White Book and also paragraph 4 of Practice Direction 44 on costs.
Whilst the interim injunction could be contested on the basis that it might not be granted, this would be risky. If the injunction is granted, then the respondent is likely to have to pay more costs than if it had been agreed. If he is willing to agree to the injunction, he should not contest it as that would be contrary to the overriding objective.
Failing to attend the hearing is bad practice and would result in an adverse costs order.
It is clearly not advisable to sell the items, particularly as the question makes clear that the respondent readily agrees not to sell any of the items until the matter has been decided.

Question 17

You represent Matthew Smithson. Matthew has lived next door to farmland for a year but 2 months ago the Defendant, Gladiator Paintballing Company, bought the land and opened a paint balling business. Ever since they opened, Matthew has been disturbed by the sound of gun fire and shouting. Additionally, paint from gun balls has reached his conservatory windows on a number of occasions. Matthew wants this to stop in the long term but he is away for a month now and isn’t concerned about the paintballing continuing in his absence.

However, he is particularly anxious about a particular weekend in 6 weeks’ time as he has organised a party for his 60th birthday at his house. A string quartet is due to play and he is concerned that nobody would be able to hear them over the sound of people playing paintball, and he is also worried that his guests might get hurt or covered in paint. You have advised him that he ought to apply for an interim injunction, and ultimately, a final injunction.

What is the best advice to give him in relation to procedure?

The best advice would be to issue a claim, and make an application for an interim injunction as soon as possible. An early hearing should be requested and the Court asked to abridge time for service and give informal notice only. The application notice and evidence should not be served, but informal notice of the hearing must be given.

The best advice would be to issue a claim form and then wait until Matthew is back from his month long trip before issuing an application notice. The application notice, draft order and evidence should then be served as soon as practicable and in any event at least 3 days before the hearing.

The best advice would be to issue a claim, and make an application for an interim injunction as soon as possible. The application notice, draft order and evidence should then be served as soon as practicable and in any event at least 3 days before the hearing.

The best advice would be to make an application for an interim injunction as soon as possible. The application notice, draft order and evidence should then be served as soon as practicable and in any event at least 3 days before the hearing. There is no need to issue a claim form yet and it’s better to wait and see what the outcome of the interim injunction is.

Answer 17

The best advice would be to issue a claim, and make an application for an interim injunction as soon as possible. The application notice, draft order and evidence should then be served as soon as practicable and in any event at least 3 days before the hearing.

This is the best advice.
On the one hand, there is time to issue a claim form, and there is time to issue an application notice and serve it without having to ask the court to abridge time.
On the other hand, the application should be made as soon as possible once it has become apparent that it is necessary and desirable. Additionally, it is important to act now so that it is less likely to be successfully argued that the status quo has shifted in favour of Gladiator Paintballing Company.
On applications generally, see CPR rule 23.7 and paragraphs 2.7 and 4 of Practice Direction 23A. On interim remedies, see CPR rule 25.2. On interim injunctions, see paragraphs 4 and 5 of Practice Direction 25A.

Question 18

Your client John Smith, a claimant, has a breach of contract claim against Graham Builders Limited (GBL). John considers GBL acted in breach of contract when installing poor quality wooden floors, window frames and doors into his new 6 bedroomed house on the outskirts of Bolton. The house was built 6 months ago.

John has issued and served a claim on GBL. The claim is worth £40,000.

The claim is defended by GBL. There is no counterclaim.

The claim is listed for a Case Management Conference in two weeks.

Traditionally, GBL have been a successful and long standing business in Bolton. Ever since the UK’s departure from the EU, GBL has struggled and is now in a very weak financial position according to enquiries made at Companies House and reliable newspaper reports. In addition, GBL has been making staff redundant due to these financial difficulties.

John is worried about recovering his costs after trial, and asks you to apply for security for costs and his solicitors ask you to do so under the provisions of CPR Part 25. You are to assume that John’s claim against GBL is strong.

Which ONE of the following is the CORRECT advice to give John Smith in these circumstances?

John cannot apply for security for costs in these circumstances.

John should immediately apply for security for costs.

John should apply for security for costs at the Case Management Conference.

John should encourage GBL to apply for security for costs.

Answer 18

John cannot apply for security for costs in these circumstances.

This is the correct advice. Security for costs is NOT a remedy available to a claimant. Security for costs is only available to a “defendant to any claim”: CPR rule 25.12(1). As John is the claimant, it would waste costs to make an ill-advised application for security for costs which could not succeed. It follows from the above that John should not be applying for security for costs at all – neither immediately not at the Case Management Conference. Finally, it is clearly not in John’s interests for him to encourage GBL to apply for security for costs.

Question 19

A court may make an order for security for costs where it is satisfied that it is just in all the circumstances to make the order and one of the relevant conditions is satisfied. Which ONE of the following is NOT a condition the satisfaction of which may allow the court to make an order for security for costs?

The claimant has changed her address since the claim was commenced with a view to evading the consequences of the litigation.

The claimant is resident outside the jurisdiction but is not resident in a state bound by the Istanbul Convention.

The claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so.

The claimant failed to give her address in the claim form, or gave an incorrect address in that form.

Answer 19

The claimant is resident outside the jurisdiction but is not resident in a state bound by the Istanbul Convention.

This statement is WRONG and is therefore the CORRECT answer to the question. CPR 25.13(2)(a) contains the relevant condition, which is that the claimant is resident outside the jurisdiction but is not resident in a state bound by the 2005 Hague Convention, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982. The reference to the “Istanbul Convention” (which is about quite different subject matter) is incorrect.

Question 20

Which ONE of the following statements is CORRECT in an application for an urgent interim injunction made without notice and before the issue of a claim form where: i) the applicant has substantial financial assets (which are easily and quickly available to the applicant); and ii) where those assets more than cover any likely order to pay damages to the respondent in the future should such an order be made?

Where an application for an injunction has been made without notice to any other party, the starting position is that an applicant such as this one need not undertake to serve on the respondent the application notice, evidence in support and any order made as soon as practicable.

The court cannot compel an applicant such as this to give a cross-undertaking but it can in its discretion refuse to grant an injunction unless the applicant does give such an undertaking.

The court is very likely to grant an injunction in favour of an applicant such as this who is able but unwilling to provide a credible cross-undertaking in damages.

Where at the hearing the court does not give directions to issue the claim, then, unless the court orders otherwise, an applicant such as this one generally need not undertake to the court to issue a claim form.

Answer 20

The court cannot compel an applicant such as this to give a cross-undertaking but it can in its discretion refuse to grant an injunction unless the applicant does give such an undertaking.

This statement is correct. See paragraph 15-27 of the commentary at Volume 2 of the White Book, in particular the sub-paragraph commencing: “The court cannot compel…”.
It is wrong to say that the court is “very likely” to grant the injunction where the applicant is unwilling to provide a credible cross-undertaking in damages. Although it is technically possible for an injunction to be granted in the absence of a credible cross-undertaking in damages, the normal position is that the undertaking is the “price” of the injunction: see paragraph 15-27 of the commentary at Volume 2 of the White Book, in particular the third sub-paragraph commencing: “Such undertaking has been described as the ‘price’ of an injunction…”.
Where an application for an injunction has been made before the issue of the claim form and at the hearing the court does not give directions to issue the claim, the starting point is that the applicant must undertake to the court to issue a claim form immediately: paragraph 4.4(1) of Practice Direction 25A.
Where an application for an injunction has been made without notice to any party, the starting point is that the applicant must undertake to serve on the respondent the application notice, evidence in support and any order made as soon as practicable: paragraph 5.1(2) of Practice Direction 25A.

Question 21

Fred Knowles is bringing a claim against Gladbury Builders Limited for breach of contract in relation to building work. Fred has issued proceedings and the matter is defended.

The claim is worth £55,000 and has been allocated to the multi-track.

Today, the court has made an order of its own initiative without a hearing. Fred’s solicitors are unhappy with the order which the court made because they consider a much more appropriate order should have been made to better reflect the requirements of the claim brought by Fred. Indeed, Fred’s solicitors think that there is an argument to say that the order made was wrong. You agree with the views of Fred’s solicitors.

Fred wishes to keep costs to a minimum and to proceed as quickly as possible but wishes to follow the advice from his solicitors. Fred’s solicitors indicate if he makes an application to the court, the application notice will be filed tomorrow.

What is the best approach for Fred’s solicitors to take?

Fred should do nothing.

Fred should apply to the court to have the order set aside or varied.

Fred should apply to the court to strike out the order.

Fred should appeal the order.

Answer 21

Fred should apply to the court to have the order set aside or varied.

This is the best approach to take on these facts. As the order was made of the court’s own initiative and without a hearing CPR r. 3.3(4) and CPR 3.3(5) apply.

Question 22

Please assume it is 13 December (regardless of the actual date).

Your client, Charles May, is bringing a claim against Danzig Metals plc for breach of contract. The matter has been the subject of a case management conference on the multi-track and directions have been set down. The directions include an order for the exchange of witness statements by 20 December this year. The order is backed by a sanction that the parties may not rely upon any statements which are not exchanged by that date. Unfortunately, Charles’s solicitor has been unable to obtain a witness statement from a key witness, Arthur Bunting, who is currently out of the country on a climbing holiday in a remote part of China. Your solicitor has spoken with Arthur’s wife who has remained in Gladbury and she tells your solicitor that Arthur has lost his mobile phone on a mountain ridge and there is no way of contacting him until late December. Arthur is happy to provide a witness statement when he returns from China in late December. The trial window is not for a further 12 months so a delay will not affect any hearings.

What is the BEST INITIAL APPROACH to deal with this issue?

Try and agree a 28 day extension orally with Danzig’s solicitors.

Charles should do nothing.

Make an immediate application to the court for a variation of the order.

Try and agree a 28 day extension in writing with Danzig’s solicitors a good period prior to the 20 December deadline.

Answer 22

Try and agree a 28 day extension in writing with Danzig’s solicitors a good period prior to the 20 December deadline.

This is the BEST INITIAL APPROACH before 20 December. Time limits can be varied by the parties subject to other rules, practice directions or court orders, r. 2.11. As the order for the exchange of witness statements is backed by a sanction the variation can only be for a maximum of 28 days, r. 3.8(3) and (4). The agreement must be in writing and should not put at risk any hearing date (this should not be an issue on this fact pattern). Therefore Charles’ solicitor should contact Danzig’s solicitors and request an extension which should be agreed in writing. The solicitor must act promptly and prior to 20 December, so there is time to apply to the court should agreement not be reached. In any event, any agreement in writing must be prior to 20 December. In addition, trying to secure written agreement for a maximum of 28 days would be the best progress that could be made at this time, and then the position should be carefully reviewed in the light of further confirmatory and up to date instructions in “late December”

Question 23

Clarissa Jones is bringing a claim against Daniel Smith for the payment of a debt in the sum of £45,000. Clarissa has issued proceedings and the matter is defended. The court has made an order stating that Clarissa’s Part 18 request for further information should be answered within 14 days otherwise Daniel’s defence will be struck out. Daniel has failed to file the answers to the Part 18 request for further information.

What would be the the best course of action for Clarissa to take now?

Clarissa should file a request for judgment.

Clarissa should apply for default judgment.

Clarissa should make an application for judgment.

Judgment is entered automatically so Clarissa need do nothing.

Answer 23

Clarissa should file a request for judgment.

This is the BEST COURSE OF ACTION. See CPR r.3.5 and r.3.8 (1). In this case the court has made an order which includes a term that the statement of case will be struck out if the party does not comply with the order. Daniel has not complied with the above order. Accordingly, his defence will be struck out. Pursuant to CPR r. 3.5(1) a request for judgment can be made if the order relates to the whole statement of case (as here) and the party wising to obtain the judgment is the claimant (as here with Clarissa) and it is for an amount to be decided by the court (as here)

Question 24

Mellor Finance PLC (‘Mellor’) is bringing a claim against Marr PLC (‘Marr’) for damages in respect of negligent financial advice in relation to a stock issue. Mellor has issued proceedings and the matter is defended. On receipt of directions questionnaires, the judge allocates the matter to the multi-track and gives standard directions without a case management conference. Mellor has its own expert. Marr has requested its own expert evidence but this has not been included in the order. Marr’s solicitors intend to make an application to vary the order which was served this morning.

In these circumstances how long does Marr have to apply to vary the order?

14 days of service of the order containing the directions.

28 days of service of the order containing the directions

21 days of service of the order containing the directions

7 days of service of the order containing the directions.

Answer 24

14 days of service of the order containing the directions.

See Practice Direction 29 paragraph 6.2(2) which states that the court will assume for the purposes of any later application that a party who did not appeal and who made no application to vary within 14 days of service of the order containing directions was content that the directions were correct in the circumstances then existing. The application must be made within this time limit or it will be assumed that marr is content with the directions order.

Question 25

Assume that a Master decides to order an interim payment.

Which ONE of the following statements is CORRECT?

The Master must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

The award of the interim payment will be disclosed to the trial judge at the start of the trial.

In deciding on the amount of the interim payment, the Master must ignore any possibility of contributory negligence.

The court has no power to order repayment of the interim payment if the defendant wins on liability at trial.

Answer 25

The Master must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

This answer reflects CPR rule 25.7(4).
The court must take into account contributory negligence and any relevant counterclaim: CPR rule 25.7(5).
The award of the interim payment must not be disclosed to the trial judge (until all questions of liability and quantum have been decided) unless the defendant agrees: CPR rule 25.9.
The court has the power to order repayment of the interim payment: CPR rule 25.8.

Question 26

Chloe Atkins has applied for an interim payment from her employer following an accident at work when Chloe injured her right arm and left leg in machinery on the factory floor. Counsel (from a different set of chambers) who originally drafted the claim form and Particulars of Claim is away on holiday. You have been instructed to attend the hearing next week and are reviewing the paperwork.

Which ONE of the following statements is the CORRECT advice to give your client on whether the court can grant an interim payment in the case?

The court can grant an interim payment if 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.

The court can grant an interim payment if satisfied that, if the claim went to trial, the defendant had no real prospect of successfully defending the claim.

The court can grant an interim payment if satisfied that, if the claim went to trial, the claimant may obtain judgment for a substantial amount of money (other than costs) against the defendant.

The court can grant an interim payment if satisfied that, if the claim went to trial, the claimant could show an arguable case that she could obtain judgment for a substantial amount of money (other than costs) against the defendant.

Answer 26

The court can grant an interim payment if 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.

This is the correct advice as it reflects CPR rule 25.7(1)(c). The wording of the rule is “would obtain judgment”, not “may obtain judgment” or “could show an arguable case that she could obtain judgment”.
As for “no real prospect of successfully defending the claim”, this is the test for summary judgment rather than for an interim payment.

Question 27

Andrew Hopkins is your client. Andrew is a defendant to a claim issued and served by the claimant, Steve Parish.

Steve alleges that Andrew was negligent in driving his car into Steve’s stationary car (Steve’s car is a 10 year old Ford Fiesta) in a collision along the local high street. As a result of this road traffic accident, Steve suffered minor whiplash injuries.

Andrew admits full liability for causing the accident with Steve.

Steve has a substantial – but wholly unsubstantiated – special damages claim. The general damages claim is significantly lower in value than the claim for special damages.

Steve works for a carpet manufacturer earning £20,000 per year. Steve has been with the company for 9 months. Before then, Steve was unemployed for 2 years. Steve lives in rented accommodation with his wife and five young children.

Andrew’s instructions are that Steve has significantly exaggerated his special damages claim and Andrew disputes quantum including the claims by Steve for a damaged Rolex watch (there is no evidence that Steve ever purchased and/or owned a Rolex watch and no receipts or other documentary evidence of any form showing any purchase or ownership etc.) and a new I-Phone (again, no documentary evidence exists showing that Steve ever purchased or owned the new I-Phone).

Which ONE of the following is the CORRECT advice to give your client, Andrew, who has been served with an application for an interim payment?

The judge may grant an interim payment for general damages but is not likely to accede to any application for an interim payment for the Rolex and the I-Phone at the hearing of the application if Andrew’s concerns are accepted.

The judge cannot grant an interim payment.

The judge may grant an interim payment for general damages and is also likely to grant an interim payment in respect of the sums for the Rolex and I-Phone at the hearing of the application.

The judge must not grant an interim payment.

Answer 27

The judge may grant an interim payment for general damages but is not likely to accede to any application for an interim payment for the Rolex and the I-Phone at the hearing of the application if Andrew’s concerns are accepted.

This is the correct advice. Since liability has been admitted, the judge may grant an interim payment under CPR rule 25.7(1)(a). It is therefore wrong to say that the judge cannot grant an interim payment at all or must not grant an interim payment at all.
However, the judge must not order more than a reasonable proportion of the likely amount of the final judgment: CPR rule 25.7(4). The evidential difficulties mean that it would not be reasonable to make an interim payment order in respect of the damages claimed for the Rolex and the I-Phone.

Question 28

Tariq issues a breach of contract claim against John claiming damages of £100,000. John files a Defence denying liability and, in the alternative, challenging the amount of damages claimed.

At an interim payment hearing in January, the court orders John to make an interim payment of £30,000 to Tariq. John duly pays the £30,000.

The trial of the claim takes place in July. When trying the claim, the trial judge is unaware of the interim payment. The trial judge finds in favour of Tariq on liability but determines that Tariq is only entitled to damages of £20,000. At that point, before the judgment is perfected by entry, the trial judge is informed of the interim payment.

In these circumstances, which ONE of the following statements is CORRECT?

The trial judge is likely to order Tariq to repay the entire £30,000 to John.

The trial judge is likely to order Tariq to repay the overpaid £10,000 to John but has no power to award interest on the £10,000.

The trial judge has no power to order Tariq to repay any sum to John.

The trial judge is likely to order Tariq to repay the overpaid £10,000 to John plus interest on the £10,000 from the date when John made the interim payment.

Answer 28

The trial judge is likely to order Tariq to repay the overpaid £10,000 to John plus interest on the £10,000 from the date when John made the interim payment.

This statement is correct. The court has power under CPR rule 25.8 to make an order to adjust an interim payment. Where the interim payment (in this case £30,000) exceeds the amount of the final award for damages (in this case, £20,000), the court will order the claimant to repay the difference (in this case, £10,000). The court may award the defendant interest on the overpaid amount from the date of the interim payment: CPR rule 25.8(5).

Question 29

Jenny suffers injuries at a privately owned hotel when she dives into the shallow end of a swimming pool. She has issued and correctly served a claim form and the Particulars of Claim on the hotel seeking damages for personal injury. A Defence has been filed denying liability. Jenny wishes to apply for an interim payment to cover the cost of a daily carer.

Which ONE of the following statements is CORRECT?

The application for the interim payment must be served at least 14 days before the hearing and be supported by evidence.

An interim payment will be ordered if the court is satisfied that Jenny is likely to obtain judgment for a substantial amount of money (other than costs) from the hotel if the claim went to trial.

An interim payment will not be ordered because the hotel has not admitted liability.

An interim payment will not be ordered unless the hotel is insured.

Answer 29

The application for the interim payment must be served at least 14 days before the hearing and be supported by evidence.

This statement is correct – see CPR rule 25.6(3).
It is NOT a general requirement for an interim payment that the defendant be insured. This is relevant to ground (e) but there are other grounds available within CPR rule 25.7(1).
It is NOT a general requirement for an interim payment that the defendant has admitted liability. This is required for ground (a) but there are other grounds available within CPR rule 25.7(1).
There are two reasons why the following statement is incorrect: “An interim payment will be ordered if the court is satisfied that Jenny is likely to obtain judgment for a substantial amount of money (other than costs) from the hotel if the claim went to trial.” First, under CPR rule 25.7(1)(c) the claimant needs to demonstrate that she would obtain judgment for a substantial amount of money (other than costs): it is not enough that she is likely to do so. Second, even if the claimant demonstrates that she would obtain judgment for a substantial amount of money, an interim payment may (rather than “will”) be ordered: the court has a discretion.

Question 30

Question 2
A woman is the managing director of a company. She becomes aware that default
judgment has been entered, correctly, for an outstanding invoice. The employee in the
accounts department who is responsible has been extremely busy and confesses that he
forgot to deal with the invoice. However, he explains to the woman that the reason for
the non- payment was because there was a dispute about the quality of the consignment
delivered under the contract.
Which of the following best describes the course of action which the woman
should take?
A The woman should write to the court on behalf of the company requesting more time to
investigate and ask that judgment be set aside in the meantime.
B The company should apply to the court requesting that the judgment be set aside
under the mandatory ground.
C The company should apply to the court requesting that the judgment be set aside
on the discretionary ground that the defendant has a real prospect of successfully
defending the claim.
D The company should apply to the court and rely upon the discretionary ground that
there is some other good reason why the judgment be set aside.
E The woman should advise her fellow directors that if the company succeeds in the
application, the claimant will be ordered to pay their costs.

Answer 30

Answer
Option C is correct as the facts state there is a dispute about the quality of the consignment
and so the company may succeed in their defence. Option A is not the best approach
because a formal application must be made to the court to set the judgment aside and a
letter will not suffice. Option B is wrong as the mandatory ground is irrelevant here – the
company have not paid the invoice in full and default judgment was entered correctly, so not
too early. Option D is not an appropriate way forward – pressure of work is not a sufficient
‘good reason’ to satisfy the court. Option E is wrong as the company may well be ordered to
pay the costs of the application even if they succeed. This is because the company is at fault
in failing to deal with the claim form in the first place.

Question 31

Question 3
A claimant has issued proceedings against a defendant and the trial date is approaching.
The parties enter into negotiations and agree that the defendant will pay half of the
outstanding invoice that is in dispute, and the claimant will supply additional materials at
no extra cost. The claimant does not want other customers to be aware of this arrangement.
Both parties are represented by solicitors.
Now the parties have agreed a resolution to their dispute, what answer describes the
best way forward?
A The claimant will agree to discontinue their claim.
B The parties will record their agreement in an exchange of correspondence.
C The parties will need to attend a court hearing to confirm their agreement.
D The parties should sign a formal consent order to be sealed by the court.
E The parties should sign a Tomlin order.

Answer 31

Answer
Option E is correct. Option A does not apply in these circumstances. A notice of
discontinuance would be served by the claimant where, for example, they conclude that they
are unlikely to succeed at trial and so decide to cut their losses and bring the litigation to a
halt. Option B is wrong because proceedings have been issued and, thus, recording the terms
of the settlement in correspondence would not be sufficient. Option C is wrong as there is no
need for a court hearing to confirm the agreement – it may be ratified in the absence of the
parties.
Although the agreement could be confirmed in either a consent order (option D) or a Tomlin
order (option E), the latter is the best way forward as the claimant does not want other
customers to be aware that they have supplied the defendant with additional materials at no
extra cost. If a Tomlin order is used, this term could be kept confidential by placing it in the
schedule to the agreement or in a separate document.

Question 32

Question 1
The defendant has a contract with a hotel to landscape their gardens ready for the official
opening on 14 May. They order 2,000 plants and shrubs (the Order) from the claimant
for £18,500. However, the Order does not arrive until 20 May (after the event) and so the
defendant refuses to pay the invoice. The claimant issues proceedings in the County Court
for the monies due and the defendant responds with a defence stating: ‘We dispute the
payment. The Order arrived too late so we could not fulfil our contract with the hotel. The
terms of the contract were agreed orally at a meeting where our sales director made it
clear to the claimant’s facilities manager that the plants and shrubs had to be delivered by
7 May to allow time for planting and that time was of the essence.’ The claimant applies to
the court for an order for summary judgment.
Which of the following answers best describes the likely outcome of the claimant’s
application for summary judgment?
A The claimant will succeed in its application because the defendant’s defence does not
provide sufficient detail for the court to determine the matter.
B The claimant may fail in their application because the need to hear oral evidence from
witnesses to determine whether time was of the essence is a compelling reason as to
why the matter should proceed to trial.
C The claimant will fail in their application but only because the information provided
in the defence is sufficient to demonstrate that the defendant has a real prospect of
successfully defending the claim.
D The claimant may fail in their application because the matter is too complex and
technical to be dealt with at a summary judgment hearing and this is a compelling
reason why the matter should proceed to trial.
E The court is likely to make a conditional order as it is possible but not probable that the
defence will succeed.

Answer 32

Answer
Option B is correct as a central issue is whether the contract contained an express term
that time was of the essence and the judge will need to hear oral evidence from the sales
director and the facilities manager who were at the meeting where the terms were agreed to
determine this issue. This is a compelling reason why the matter should proceed to trial.
Option A is wrong because there is no guarantee the claimant ‘will’ succeed in their
application. Option C is wrong as there are two grounds upon which the court could refuse
to grant summary judgment. In addition to deciding that the defendant has a real prospect
of defending the claim, the court could also refuse the claimant’s application on the basis of
compelling reasons (as above).
Option D is wrong because the matter is neither complex nor technical in nature. Option E is
not the best answer because of the reasons above, but also the defendant’s defence has a
greater than ‘possible’ chance of success on the limited evidence available.

Question 33

Question 2
The company is a pharmaceutical corporation and they have just developed a vaccine for a
coronavirus that is sweeping the globe. One of their research scientists is offered significant
financial incentives to work for a competitor in producing their own vaccine. The scientist
leaves the company and begins work immediately for the competitor. The company is
concerned that the scientist will use the confidential information and knowledge they have
acquired and this will have a huge impact upon the company’s future profits. They have
information that the scientist downloaded material onto a mobile device and also that they
may be moving to the United States to work in a laboratory there.
Which of the following best describes the action that the company could take to protect
their position?
A The company should issue proceedings against the scientist claiming damages for
breach of contract and wait for the trial to determine these.
B The company should apply for an interim injunction to prevent the scientist from using
the confidential information that they have obtained.
C The company should apply for a search order and a freezing injunction against the
scientist.
D The company should apply for an interim injunction to prevent the scientist from using
the confidential information that they have obtained together with a search order.
E The company should apply for an interim injunction to prevent the scientist from using
the confidential information that they have obtained, a search order and a freezing
injunction.

Answer 33

Answer
Option E is correct. The company should apply for an interim injunction to prevent the
scientist from using the confidential information they have obtained, a search order to
compel the scientist to allow their premises to be searched for the mobile device and a
freezing injunction to prevent them from moving their assets to the United States. As all
three interim remedies are possible on the facts, options B, C and D are not the best ones.
Whilst option A is a correct course of action, waiting for the trial would mean the damage
was done – the competitor would have developed and sold the vaccine and the company
would have lost the profits from doing so themselves.

Question 34

Question 3
A woman issues proceedings against a company for breach of contract relating to the
building of a new house. The company respond with a full defence and a counterclaim
for the second instalment, which they allege is owed by the woman for the building works
carried out to date. The issues in dispute are complex and highly contested so the litigation
is likely to take some considerable time to resolve. The woman has just lost her employment
and is in financial difficulties. Her solicitor advises her to apply for an interim payment.
Is the woman likely to succeed in her application for an interim payment?
A Yes, because the woman can apply for an interim payment as soon as she serves the
particulars of claim.
B Yes, because when deciding whether to grant the application for an interim payment,
the court may take into account the woman’s financial hardship.
C No, because liability has not been determined and the court must have established
liability before an interim payment can be awarded.
D No, because the litigation is complex and highly contested, so the court cannot be
satisfied the woman would obtain judgment at trial.
E No, because the company have served a counterclaim and this precludes the woman
from being granted an interim payment.

Answer 34

Answer
Option D is the correct answer. The woman would not be granted an interim payment as the
court is unlikely to be satisfied that, if the claim went to trial, she would obtain a judgment.
Given that the case is complex and highly contested, there is real uncertainty as to which of
the parties would succeed in the litigation.
Option A is wrong as the woman cannot apply for an interim payment after serving the
particulars of claim; she must wait until after the time for acknowledging service has expired.
Option B is wrong because the woman’s financial hardship is not a ground on which the court
may grant the application.
Option C is wrong because (as stated above) the court may grant an application for an
interim payment before liability has been determined provided the court is satisfied that the
woman would obtain a judgment for a substantial amount of money against the company
should the matter proceed to trial. Option E is wrong because the mere presence of a
counterclaim does not preclude the court from granting an interim payment.

Question 35

The partners in a firm of solicitors allege that a new partner (‘New Partner’) misrepresented the value of the client base which he would be bringing to the partnership upon joining the partnership. The claimants have brought a claim against the New Partner. The New Partner’s defence denies misrepresentation. Annexed to the defence is a document in which the defendant sets out the details of the client base and its value at the time the New Partner joined the partnership. Neither the claimants nor their legal representative understand this document, in particular because they do not understand a number of the abbreviations and calculations contained in it.

Which of the following is the best course of action for the claimants to take in light of the lack of a clear defence?

Select one alternative:

Apply to strike out the defence (or part of it).

Apply for an order that the New Partner should provide further information.

Request disclosure of the documents supporting the analysis in the annex to the Defence.

Apply for summary judgment.

Make a request for further information.

Answer 35

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.

Question 36

A software company is concerned that a web-developer is using the software company’s intellectual property and confidential information to develop the web-developer’s business, in breach of those intellectual and property rights and in breach of confidence. The web-developer’s only revenue stream is £15,000 a month and it has no savings or valuable assets. The software company has cash readily available in the sum of at least £670,000 and is considering seeking an interim injunction to prevent these breaches pending trial because it is not possible to calculate the extent of the very significant losses the software company will suffer if the breaches continue.

Which of the following is the best advice as to the prospects of an application for an interim injunction succeeding?

Select one alternative:

The application is unlikely to succeed.

The court must grant this application.

The court cannot grant this application.

The application is likely to be adjourned pending trial.

The application is likely to succeed.

Answer 36

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.

Question 37

Mr Treacy obtained default judgment in his favour against Mr Brewster in the sum of £101,500, which Mr Treacy then sought to enforce a year later by way of a charging order. Mr Treacy was given permission for this, so Mr Brewster then issued an application to set the default judgment aside, which he delayed in having heard for a further year.

As a result, Mr Treacy then sought an order striking out the application of Mr Brewster to set aside the judgment obtained against him. Mr Brewster claims that he had been unaware of the judgment until a year after it had been obtained, and a further year later he listed the application to set aside the default judgment to be heard in response to the grant of permission to Mr Treacy to execute the sum due by way of charging order. Mr Treacy seeks to resist the set aside application, arguing that there has been an abuse of process in Mr Brewster’s failure to bring his application to set aside the default judgment as soon as it was apparent that it needed to be brought. Mr Treacy argues that Mr Brewster has delayed in bringing the application and it has only been brought now due to Mr Treacy’s threat to enforce. Mr Brewster argues that his case has a real prospect of success and accordingly, the court should exercise its discretion to set aside the default judgment. He also blames the delay on his legal representatives.

Which ONE of the following statements is the BEST ADVICE to give to Mr Treacy about the likely order that the court will make in relation to Mr Brewster’s application to set aside?

The court is likely to refuse the application to set aside the default judgment, with Mr Brewster’s conduct being held to be an abuse of process, as he did nothing until Mr Treacy sought to enforce the judgment.

The court is likely to grant the application to set aside the default judgment, as Mr Brewster satisfies the test for setting aside default judgment and it is within the discretion of the court to grant the application.

The court is likely to adjourn the application to set aside the default judgment and make an order for further information to be provided about the prospects of success of Mr Brewster’s case in light of the discretionary test to set aside default judgment in these circumstances.

The court is likely to grant the application to set aside the default judgment, as Mr Brewster satisfies the test for setting aside default judgment, any delay has been caused by his legal representatives and it is within the discretion of the court to grant the application.

Answer 37

The court is likely to refuse the application to set aside the default judgment, with Mr Brewster’s conduct being held to be an abuse of process, as he did nothing until Mr Treacy sought to enforce the judgment.

CORRECT. This is the BEST ADVICE to give Mr Treacy in these circumstances as it follows the decision in Nolan v Devonport [2006] EWHC 2025 (QB) unrep. as set out in para 13.3.3 of the White Book. This decision also explains why the other potential answers are incorrect

Question 38

Rayan Navarro (‘RN’) obtained default judgment against his employer, Lepore Plc (‘Lepore’), for breach of an employment contract. Subsequently, Lepore applied to the court to set it aside and both parties attended the hearing, but the judge refused to set aside the default judgment and dismissed the application. Lepore is dissatisfied with this and would like advice as to how to proceed.

Which ONE of the following statements is the BEST ADVICE to give to Lepore about the approach to take following the judge’s refusal to set the default judgment aside?

The order by the court here to refuse to set the judgment aside is a decision which could be subject to a further challenge under the court’s general power to vary or revoke orders.

The order by the court here to refuse to set the judgment aside is a final decision and, as such, the only way forward is for Lepore to appeal the judge’s order.

The order by the court here to refuse to set the judgment aside is a decision which could be subject to a second application to set aside default judgment.

The order by the court here to refuse to set the judgment aside is a decision which could, on application or of its own initiative, be re-listed.

Answer 38

The order by the court here to refuse to set the judgment aside is a final decision and, as such, the only way forward is for Lepore to appeal the judge’s order.

CORRECT. This is the BEST ADVICE to give to Lepore in accordance with Samara v MBI & Partners UK Ltd [2016] EWHC 441 (QB) as set out in para 13.3.1 of the White Book. The order by the court is a final decision and cannot be the subject of a second application to set aside judgment or a further challenge by reference to CPR 3.1(7).

Question 39

Eleanor has a breach of contract claim against James. The claim relates to non-payment of an invoice and Eleanor is of the view that James has no chance of successfully defending the claim. The claim has just been issued and Eleanor served the Claim Form personally on James yesterday. She is keen for the matter to be disposed of as quickly as possible.

What is the BEST ADVICE to give Eleanor about the next step(s), she should take to obtain judgment without having to go to trial?

Eleanor should make an application for summary judgment straight away.

Eleanor should make an application for summary judgment after James has filed an acknowledgement of service, if he does so.

Eleanor should make an application for strike out at the same time as any application for summary judgment.

Eleanor should make an application for summary judgment after James has filed his defence.

Answer 39

Eleanor should make an application for summary judgment after James has filed his defence.

This is the best advice. As a claimant, Eleanor may not apply for summary judgment until the defendant has filed an acknowledgement of service or a defence. It is usually preferable to wait until the defence has been served as this can support the application (and other applications such as strike out may also be made at the same time). See CPR 24.4(1).

Question 40

Your client, Cars 786 Limited, was recently added as a second Defendant to proceedings on 10 July 2021 in relation to a claim for an alleged breach of contract which occurred on 6 January 2020. Proceedings were issued and the Claim form served on 1 July 2021. You are advised that the Claimant did obtain the consent of the first Defendant before making the amendment to add your client as a second Defendant, but did not make any application to court.

What is the best course of action to take in the circumstances?

An application to strike out the statement of case which should be made as soon as possible.

Once served with the particulars of claim your client should file an acknowledgement of service within 14 days and at the same time request an extension of time to file a defence from the Claimant to avoid default judgment and to allow time to properly plead a defence.

Once served with the particulars of claim your client should respond within 14 days by either filing an acknowledgement of service or defence to avoid default judgment being obtained.

As the claim form has been served and the Claimant did not obtain the permission of the court the defendant should make an application for an order disallowing the amendment.

Answer 40

An application to strike out the statement of case which should be made as soon as possible.

Correct. This answer reflects the best course of action on the facts. As the amendment required the permission of the court ( to add a party see rule 19.4(1) ) and as such is irregular the best step is to challenge the amendment and the most appropriate way to challenge is to apply to strike out under CPR 3.4. Most applications under CPR 17.2 (as per the incorrect answer suggesting applying for an order disallowing the amendment) concern cases where the amendment being challenged was made under CPR 17.1(1). Please review your materials and CPR 17, CPR 19 and CPR 3.4.