Introduction to DR MCQs Flashcards
Your client is a company who is intending to commence proceedings against a partnership claiming professional negligence. The claim is for £500,000. As required, the company and the partnership have been following the Professional Negligence Pre-action Protocol. Recently, however, the solicitors for the potential defendant partnership were 2 days late in responding to the letter of claim without seeking an extension or offering any explanation. Which of the following statements best describes what your client should do, assuming it wishes to commence proceedings as soon as possible?
The company should not raise the partnership’s non-compliance with the protocol at the moment but instead ask the court to make an adverse costs order at the end of the case (CPR 44.2) to reflect the non-compliance.
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
The company should raise the partnership’s non-compliance with the court and ask the court to impose costs sanctions for non-compliance with the protocol.
The company should commence proceedings as the Pre-action Protocol has not been followed by the partnership.
The company should expect more favourable case management orders since it has complied with the protocol and the partnership has not.
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
CORRECT. Parties are expected to comply with the spirit of the protocols and the court will not be concerned with trivial breaches (paragraph 13 PD on Pre-action Conduct).
Your client wishes to commence proceedings for breach of contract against a supplier for defective goods. The amount of the claim is £108,000 (inclusive of £18,000 VAT). The claim is not complex. In which court can your client issue proceedings?
Because the case will be allocated to the multi-track, your client ought to commence proceedings in the High Court.
Your client must issue proceedings in the County Court given that the principal amount is £90,000.
Your client must issue proceedings in the High Court.
Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
If your client commences proceedings in the County Court it is likely that the court will transfer it to the High Court.
Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
Correct. Given that the amount is over £100,000 (even if this is only as a result of VAT), your client has a choice as to where to issue proceedings (7A PD 2.1 and CPR 16.3(6)). However, facts here may point towards the Count Court being the better choice given the complex is not complex and the value is only just over the £100,000 threshold.
A solicitor has been instructed on behalf of a supermarket chain to act in relation to a breach of contract claim against one of the supermarket’s suppliers. The supermarket chain is a private company. Having completed the requirements set out in the Practice Direction on Pre-action Conduct and having failed to settle the claim, the solicitor drafts the particulars of claim on behalf of their client. The managing director of the supermarket chain will sign the statement of truth on the particulars of claim. Which of the following gives the correct format for the statement of truth?
I am duly authorised by the Claimant to sign these particulars of claim. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the Claimant to sign this statement.
I believe that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant believes that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised by the Claimant to sign this statement.
Well done. This is the correct form of a statement of truth where a statement of case (here, the particulars of claim) is being signed on behalf of a company. This was covered in the element ‘General rules in relation to statements of case’.
You have just been instructed by a new client. Today’s date is 15th December and you advise your client that the limitation for its proposed claim expires on 27th December in 12 days’ time. The Practice Direction on Pre-action Conduct applies to the claim. Your client would like to proceed with the claim, but will not be available to assist with case preparation until early in January. Your client wants to know whether it is possible to postpone issuing proceedings until early in January? What advice should you give your client?
Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
Your client should comply with the Practice Direction on Pre-action Conduct prior to issuing proceedings as failure to do so will result in adverse costs consequences.
Your client should write a letter to the defendant setting out the nature of the proposed claim and suggesting that they agree to postpone proceedings until early in January.
Your client should issue the claim form straight way but wait to serve it until the beginning of January when it is able to attach the particulars of claim to provide the defendant with more information on its underlying claim.
Your client should write a letter to the defendant setting out the nature of the proposed claim and await a response as a demonstration of good conduct in the proceedings in accordance with the Practice Direction on Pre-action Conduct.
Your client should 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.
A client is claiming damages for negligence by a solicitor. The solicitor works in a city law firm’s commercial property department and is listed in Chambers & Partners as a specialist in commercial property law. It is alleged that the solicitor negligently advised the client about the meaning of a restrictive covenant which has directly let to the client suffering loss. Which of the following statements best describes the standard of care that the solicitor should have exercised in this case?
The solicitor must act to the standard the majority of solicitors would act.
The solicitor must act to the standard acceptable to a responsible body of practitioners.
The solicitor must act to the standard of a reasonably competent practitioner.
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property and recommended in Chambers & Partners.
The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
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.
Question 1
A claimant wants to issue proceedings for a breach of contract claim arising from the
provision of goods that were not of satisfactory quality. This caused the claimant to suffer
losses of £43,000 being the price of the goods and £52,000 loss of profits. The defendant is
an individual who trades under a business name. The defendant has failed to respond to
any correspondence from the claimant. When the contract was negotiated, the defendant
instructed solicitors to act on their behalf.
Which statement describes the best way in which the claimant should issue
proceedings?
A In the High Court against the defendant in their individual and business names, with
the address for service being that of the defendant.
B In the High Court against the defendant in their business name only, with the address
for service being that of the solicitors.
C In the County Court against the defendant in their personal name only, with the
address for service being that of the defendant.
D In the County Court against the defendant in their business name only, with the address
for service being that of the solicitors.
E In the County Court against the defendant in their individual and business names, with
the address for service being that of the defendant.
Answer
Option E is correct. The claim must be issued in the County Court as the value of the losses
claimed is £95,000, so less than £100,000 which is required for High Court proceedings. Both
options A and B are wrong for this reason.
The defendant should be sued in their full unabbreviated name together with their full trading
name. For this reason, options B, C and D are wrong. Options B and D are also wrong
because the defendant has not confirmed that their lawyers are instructed to accept service of
court proceedings on their behalf.
Question 3
A claimant commences a claim for breach of contract against a company (the defendant).
Two years later, the company is sold to another company (the purchasing company), which
takes over all the assets and liabilities. The claimant applies, within the limitation period, to
substitute the company as a defendant with the purchasing company so that the claim may
continue.
Which statement best describes the court’s powers in this situation?
A Because the purchasing company has taken over the company’s liabilities, the claimant
has the right to substitute the purchasing company as a new party.
B The purchasing company must file their consent in writing with the court before they
may be substituted as a defendant.
C The court can substitute the purchasing company as a defendant as it is desirable to
do so given that the company’s liabilities have passed to the purchasing company.
D The court can substitute the purchasing company as a defendant because the claim
cannot properly be carried on without the new party.
E The court cannot substitute the purchasing company as a defendant.
Answer
Option C is the correct option as the application was made within the limitation period and
the statement correctly describes the legal test to substitute a party.
Option A is wrong because the claimant will require the court’s permission to substitute the
purchasing company as a new party given that the claim form has been served (two years
have passed). Option B is wrong as written consent is only required if the claimant is to be
added or substituted as a new party, and here it is the defendant.
Option D is wrong as this provision relates to applications made outside the limitation period,
which does not apply in this instance. Option E is wrong as the court does have the power to
substitute the purchasing company as a defendant.
Question 20
A claimant is bringing a claim against a defendant, seeking damages for breach of contract. The claimant alleges that the parties agreed to an oral amendment to the contract. The defendant denies that the parties had any such agreement. The only evidence on this issue, which will determine the outcome of the claim, is the conflicting oral evidence of the claimant and the defendant.
Which of the following best describes the burden of proof, if any, which the court will apply in deciding the issue?
A. The burden lies with the defendant to disprove the claimant’s allegation beyond reasonable doubt.
B. The burden lies with the defendant to disprove the claimant’s allegation on the balance of probabilities.
C. Neither party bears the burden of proof and the judge will order a retrial if the judge cannot be sure which party’s evidence is correct.
D. The burden lies with the claimant to prove the allegation on the balance of probabilities.
E. The burden lies with the claimant to prove the allegation beyond reasonable doubt.
D - The burden lies with the claimant to prove the allegation on the balance of probabilities.
A large public limited company (PLC) leases a vending machine to a small village school. The school has failed to make a payment of £300 due under the lease agreement for the machine. PLC has commenced a claim against the school in the County Court.
The school is defending the claim on the basis that sums are not due, because the vending machine no longer works. PLC has instructed its solicitor to compile a list of documents containing 267 pages of emails and to seek expert evidence on vending machines from two different experts.
Are these instructions likely to be consistent with the overriding objective of the Civil Procedure Rules?
A. No, because the overriding objective requires the parties to help the court deal with cases justly and at proportionate cost.
B. No, because the overriding objective requires the parties to help the court deal with cases quickly.
C. Yes, because the overriding objective applies only to the courts, not the parties.
D. Yes, because the overriding objective requires proportionality only in regards to the relative merit of a claim, not in regards to the relative value of the claim.
E. Yes, because the overriding objective applies only to pre-action conduct.
A - No, because the overriding objective requires the parties to help the court deal with cases justly and at proportionate cost.
