Paper 2

Question 1

Charlotte has been given permission to add Raoul as a Second Defendant to the proceedings she has brought against Bob, and to serve amended particulars of claim. Bob served his defence two months ago, in which he made allegations against Raoul.
Following Raoul being added to the claim, Bob has decided to claim for an indemnity or contribution against Raoul.
Charlotte served her amended particulars of claim on Bob and Raoul 14 days ago.
Raoul served his defence on Charlotte and Bob 7 days ago.
What is the correct advice to give Bob as to the procedure by which he may make a claim for contribution or indemnity against Raoul and the permission he will require, if any?
[A] Bob should apply for permission to amend his defence to include a claim for contribution or indemnity against Raoul.
[B] Bob will not require the court’s permission to make the claim for contribution or indemnity if he serves a notice containing a statement of the nature and grounds of his additional claim within 28 days of service of Raoul’s defence.
[C] Bob will not require the court’s permission to make the claim for contribution or indemnity if he serves a notice containing a statement of the nature and grounds of his additional claim within 28 days of service of the amended particulars of claim.
[D] Bob should apply for permission to serve notice of his additional claim as he did not serve it with his defence.

Answer 1

Answer:
[B] Bob will not require the court’s permission to make the claim for contribution or indemnity if he serves a notice containing a statement of the nature and grounds of his additional claim within 28 days of service of Raoul’s defence.

Rationale:
[A] is wrong as Bob has no need to amend his Defence if allegations have already been raised against Raoul and can follow CPR 20.6 by making a claim by filing a notice containing a statement of the nature and grounds of his additional claim; and (b) serving the notice on that party.
[B] is correct and follows the provisions of CPR 20.6(2)(ii)
[C] is wrong - see CPR 20.6(2)(ii)
[D] is wrong - the court’s permission is not needed provided Bob serves the notice within 28 days of service of Raoul’s defence.

Question 2

Eileen suffered spinal injuries in a road traffic accident. She has brought a claim in negligence against John, the other driver whom she alleges caused the accident.
John admits liability and Eileen applies for an order that John should make an interim payment to her in advance of the trial to cover the cost of adaptations to her home needed to allow her to cope better with her injuries.
The application is listed for a hearing on Friday 22 December 2023. John intends to rely on written evidence at the hearing to contest the size of the payment sought.
What is the latest date by which this evidence must be filed and served?
[A] Thursday 7 December 2023
[B] Thursday 14 December 2023
[C] Friday 15 December 2023
[D] Friday 8 December 2023

Answer 2

Answer:
[B] Thursday 14 December 2023
Rationale:
[A] is incorrect – see explanation for [B].
[B] CORRECT. If the respondent to an application for an interim payment wishes to rely on written evidence at the hearing, this must be filed and served at least 7 days before the hearing (CPR 25.6(4)). Where the end of a period specified in the rules is defined by reference to an event, as this period is, the day on which the period begins and the day on which the event occurs are not included (CPR 2.8, SA13). Therefore, the deadline is 14 December. Options [A], [C] and [D] are incorrect for the reasons given in [B].
[C] is incorrect – see explanation for [B].
[D] is incorrect – see explanation for [B].
 

Question 3

Which of the following statements is correct as to the nature of a disclosure statement?
[A] It is a list of documents in the relevant practice form, pursuant to an order for standard disclosure.
[B] It sets out the extent of the search made and certifies an understanding of the duty to disclose documents and that the duty has been carried out to the best of the party’s knowledge.
[C] It is an agreement in writing between the parties to dispense with or to limit standard disclosure.
[D] It is a list of documents on which a party relies and which adversely affects their own case, adversely affects another party’s case or supports another party’s case, or is required to be disclosed by a Practice Direction.

Answer 3

Answer:
[B] It sets out the extent of the search made and certifies an understanding of the duty to disclose documents and that the duty has been carried out to the best of the party’s knowledge.

Rationale:
[A] This is wrong and relates to the process of standard disclosure and follows CPR 31.10(2)
[B] This is the correct answer and follows CPR 31.10(5) and (6) and PD31A para 4.
[C] This is wrong and relates to CPR 31.5(1)(c).
[D] This is wrong and relates to the requirements on standard disclosure CPR 31.6.
 

Question 4

Your client, Jesse, is the Defendant in proceedings. Zahara was previously a Defendant, but proceedings have now been discontinued against her. An expert’s report was disclosed by Zahara when she was defending the claim and contains evidence which is helpful to Jesse. Jesse wishes to rely on that evidence at trial.
What is the correct advice to give Jesse about the expert’s report disclosed by Zahara?
[A] Jesse is not entitled to use it as evidence at the trial.
[B] Jesse needs permission from Zahara to use it as evidence at the trial.
[C] Jesse needs permission from the court to use it as evidence at the trial.
[D] Jesse may use it as evidence at the trial without permission from Zahara or the court.

Answer 4

Answer:
[D] Jesse may use it as evidence at the trial without permission from Zahara or the court.

Rationale:
[A] is incorrect – see explanation for [D].
[B] is incorrect – see explanation for [D].
[C] is incorrect – see explanation for [D].
[D] is correct. CPR 35.11 provides that “Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial”. The commentary at para 35.11.1 of the White Book 2022 states “It is not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose, see “Gurney Consulting Engineers v Gleeds Health and Safety Ltd [2006] EWHC 43 (TCC), applied by Shepherd & Neame v EDF Energy Networks (SPN) Plc [2008] EWHC 123 TCC at paras 11-14.
 

Question 5

Damages in the sum of £26,000 plus interest of £300 and an order for costs were awarded in Gloria’s favour. There was no suggestion or finding that the claim was fundamentally dishonest.
When dealing with costs, it was brought to the court’s attention that Derek had made a Part 36 offer, which was not accepted by Gloria and which was more advantageous than the sum awarded to Gloria at trial.
Derek was therefore awarded his costs plus interest on those costs. The costs order made in favour of Derek totals £28,000.
What is the correct advice to give as to the effect of the costs order made in favour of Derek?
[A] Derek will be able to enforce the costs order in his favour up to £26,300 without the permission of the court and any balance shall not be treated as an unsatisfied or outstanding judgment on the court record.
[B] Derek will be able to enforce the costs order in his favour up to £26,000 without the permission of the court and any balance shall be treated as an unsatisfied or outstanding judgment on the court record.
[C] Derek will be able to enforce the costs order in his favour of £28,000 in full without the permission of the court and therefore there is no balance to consider on the court record.
[D] Derek will be unable to enforce the costs order in his favour, unless he obtains the permission of the court, and this amount shall be treated as an unsatisfied or outstanding judgment.

Answer 5

Answer:
[A] Derek will be able to enforce the costs order in his favour up to £26,300 without the permission of the court and any balance shall not be treated as an unsatisfied or outstanding judgment on the court record.

Rationale:
[A] CPR 44.13 and 44.14(1) & (3). The claim is a fatal accident claim and therefore falls within CPR 44.13(1)(b) and (c) so qualified one-way costs shifting applies. The claim does not fall within any of the exceptions set out in CPR 44.15 or 44.16, so CPR 44.14(1) applies, which provides that the order for costs made in Derek’s favour (and against Gloria as the claimant here) may be enforced without the permission of the court, but only to the extent that the amount of that costs order (£28,000) does not exceed the amount ordered by the court to Gloria for damages and interest (totalling £26,300).
CPR 44.14(3) provides that any order for costs which is enforced only to the extent of the claimant’s damages and interest, shall NOT be treated as an unsatisfied or outstanding judgment for the purposes of the court record.
[B] This is incorrect. CPR 44.14(1) provides that the amount of interest awarded to the claimant can be considered as part of the aggregate amount of money which the defendant can enforce against, not just the amount of damages, and CPR 44.14(3) provides that any order for costs which is enforced only to the extent of the claimant’s damages and interest, shall NOT be treated as an unsatisfied or outstanding judgment for the purposes of the court record.
[C] This is incorrect. Derek will not be able to enforce his costs order in full under CPR 44.14(1) as the amount of the costs order in his favour exceeds the amount awarded to Gloria in damages and interest. There will be a balance that Derek is unable to enforce and in accordance with CPR 44.14(3) this shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.
[D] This is incorrect. Derek will be able to enforce the costs order made in his favour up to the amount of damages and interest awarded to Gloria without the permission of the court under CPR 44.14(1) and in accordance with CPR 44.14(3) any amount that cannot be enforced shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.
 

Question 6

Martin’s solicitor telephones you to seek your advice as to how the court would be likely to respond to an attempt by Martin to avoid the agreement by issuing proceedings.
What is the correct advice to give Martin’s solicitor in response?
[A] The court would be required to give effect to the agreement. If Martin brings a claim in breach of the agreement, then the court will strike out the claim and Martin will require permission to bring a new claim if the expert determination does not resolve the dispute.
[B] The court would be required to give effect to the agreement. If Martin brings a claim in breach of the agreement, then the court will stay the claim until the conclusion of the expert determination process.
[C] There is a presumption in favour of the court exercising its discretion to strike out any claim brought by Martin in breach of the agreement. The burden would lie on Martin to show that there is a good reason for his claim not to be struck out.
[D] There is a presumption in favour of the court exercising its discretion to stay any claim brought by Martin in breach of the agreement. The burden would lie on Martin to show that there is a good reason for the stay not to be imposed.

Answer 6

Answer:
[D] There is a presumption in favour of the court exercising its discretion to stay any claim brought by Martin in breach of the agreement. The burden would lie on Martin to show that there is a good reason for the stay not to be imposed.

Rationale:
[A] is wrong. CPR 1.4(2)(e) and (f) requires the court to: encourage the parties to use ADR if the court considers that appropriate; and to help the parties to settle the whole or part of the case. However, the court is not required to give effect to the ED agreement. Para 1.4.9 of the WB 2023 commentary makes clear that there is a presumption in favour of granting a stay if a party acts in breach of such an agreement (as Martin is proposing to do here) but the presumption is rebuttable upon a party showing a good reason not to stay the claim. Moreover, the expert determination by its nature would resolve the dispute and, therefore, Martine would not need be able to bring proceedings.
[B] is wrong for the reasons given in [A] above.
[C] is wrong. This answer correctly identifies the presumption in relation to an attempt to defeat an ED clause, but incorrectly gives strike out of the claim as the likely remedy. The remedy according to paragraph 1.4.9 of the WB 2023 commentary is to stay the claim to give effect to the ED agreement.
[D] is correct. This answer correctly identifies the presumption, the remedy to be imposed and the burden on Martin if he wishes to avoid the stay. See White Book 2023 Volume 1 commentary at para 1.4.9.
 

Question 7

In April 2023 Martin issued and served proceedings against Nicky.
In May 2023, Nicky filed a defence denying liability, claiming that the food supplement was inappropriate for the breed of sheep and, in addition, that Martin failed to introduce the food supplement into the ewes’ diet gradually in accordance with Grazier’s instructions.
In response to Nicky’s defence, Martin tells you that, when purchasing the food supplement, he took advice from Grazier, who had reassured him that the breed of sheep he owned was suited to the food supplement. Martin further tells you that he had followed Grazier’s advice as to how and when to introduce the supplement into the ewes’ diet.
It is now late May 2023.

In light of Nicky’s defence, you advise that Grazier should be joined to the proceedings.
What is the correct advice to give Martin as to how Grazier should be joined to the proceedings?
[A] Martin should apply to the court for permission to join Grazier as an additional party seeking a contribution or indemnity against the allegations raised by Nicky.
[B] Martin should apply to the court for permission to join Grazier as a second defendant.
[C] Martin should make a claim for contribution or indemnity and join Grazier as an additional party, for which neither permission nor consent is required.
[D] Martin should join Grazier as a second defendant; if Nicky consents to Grazier being joined to the proceedings, Martin does not require the court’s permission.

Answer 7

Answer:
[B] Martin should apply to the court for permission to join Grazier as a second defendant.

Rationale:
[A] is incorrect as that statement is wrong. Martin, as the claimant, would not be seeking to join in Grazier as an additional party seeking a contribution or indemnity against the allegations raised by Nicky. This is a misstatement of the rule under CPR 20.6 in which a defendant would seek to join in an additional party for contribution or indemnity against a person who is already a party to the proceedings. Martin is the claimant and Grazier has yet to be joined into the proceedings (CPR 20.6, 20.7 and 19.4).
[B] The fact pattern suggests that Martin has an actionable claim against both Nicky and Grazier so in order to protect his position he should bring proceedings against both. As proceedings have been served, permission of the court is needed to join Grazier in an additional party (second defendant) (CPR 19.4). B is therefore the best option for Martin as he takes the initiative in protecting his position in his claims against both Nicky and Grazier as either or both could be liable (CPR 20.6, 20.7 and 19.4).
[C] is incorrect as Martin is the claimant and cannot make a claim for contribution or indemnity against Grazier and in any event, they are not a party to the proceedings. The correct advice is to join Grazier as second defendant to the proceedings (CPR 20.6, 20.7 and 19.4).
[D] is incorrect as Martin requires the court’s permission: CPR 19.4(1).
 

Question 8

In addition to his claim for the initial cost of the feed of £5,000, Martin has valued his loss of profit from the sale of the lambs, the ewes’ milk, and wool at £7,500. He incurred additional expenditure for replacement food at £4,000. Replacement of livestock is estimated at £1,500–£3,500 and veterinary bills at £6,000. Martin is aware that this food supplement is being widely used within the farming community and a number of sheep farmers have expressed concern about it and its continued use in the food chain.
The parties are at the stage of completing the Directions Questionnaires and attempt to agree directions. In respect of the claim and counterclaim:
* all three parties wish to call two lay witnesses each;
* all three parties agree to the instruction of a single joint veterinary expert (with permission to be given for oral evidence);
* Martin and Grazier each seek to instruct an expert in sheep nutrition (with permission to be given for oral evidence); and
* all three parties agree that it will take four hours to hear the evidence on the claim and a further five hours to hear the evidence on the counterclaim.

To which track is the case most likely to be allocated, and why?
[A] To the fast track; because of the value of the claim, the issues are straightforward, and the trial of the claim is not likely to last more than one day.
[B] To the fast track as the claim and counterclaim can be dealt with justly on that track given the value of the claim.
[C] To the multi-track as oral expert evidence in a fast-track trial is limited to a maximum of two experts.
[D] To the multi-track as, in all the circumstances and as the claim and counterclaim will be tried together, the court may not allocate it to the fast track.

Answer 8

Answer:
[D] To the multi-track as, in all the circumstances and as the claim and counterclaim will be tried together, the court may not allocate it to the fast track.

Rationale:
[A] is not the best answer. It is not necessarily the case that the claim will be under £25,000. It is possible that the claim will be straight forward but and the trial could take no longer than one day, but that is no means certain on the facts as we understand them (CPR 26.8).
[B] is not the best answer. It may not be allocated to the fast track – see PD26 9.1(3)(e) See full reasoning in [D].
[C] is not the best answer. Whilst it is possible, it is by no means certain that this matter will be allocated to the multi-track given the uncertainty of the potential value (CPR 26.6 & 26.8). CPR 26.6(5)(b).
[D] is the best answer. See PD26 para 9.1 (3)(a)(c) and (e): Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, as might be suggested to be the case here, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track. However, of relevance here is that PD26 para 9.1(3) (e) that where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track. Further, PD26 para 9.1 (3)(a) when it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard bearing in mind (c) that the possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track.
 

Question 9

The experts’ reports are received and exchanged. Grazier’s sheep nutrition expert concludes that there is a small possibility that the supplement was unsuitable for Martin’s sheep. However, Martin’s sheep nutrition expert concludes that it is more than likely that the supplement was unsuitable for Martin’s sheep.
On 4 November 2023, Grazier, for reasons which are unexplained, serves a written notice of change of terms of the Part 36 offer to the sum of £8,000.
Martin is concerned about his liability for increasing costs.
It is now 12 November 2023.
Can Martin accept Grazier’s offer of £16,000 and, if so, how?
[A] Martin can accept the offer by making an application to the court seeking permission to do so, but he must make the application before 13 November 2023.
[B] Martin can serve notice of acceptance of the Part 36 offer before 13 November 2023, but he should be aware that Grazier may, within 7 days of Martin’s notice of acceptance, apply to the court for permission to change the terms of the offer.
[C] Martin cannot accept the offer, as the change of terms takes immediate effect from 4 November 2023.
[D] Martin can serve notice of acceptance of the Part 36 offer before 13 November 2023, but he should be aware that he must, within 7 days of serving notice of acceptance, apply to the court for the court to determine the costs liability for the proceedings.

Answer 9

Answer:
[B] Martin can serve notice of acceptance of the Part 36 offer before 13 November 2023, but he should be aware that Grazier may, within 7 days of Martin’s notice of acceptance, apply to the court for permission to change the terms of the offer.

Rationale:
[A] is not the correct advice. CPR 36.9 and 36.10 do not make provision for the offeree (Martin) to make an application to accept a Part 36 offer which has been withdrawn. It is for the offeror (Grazier) to apply to the court for permission to withdraw the offer if the offeree has served notice of acceptance within the relevant period (CPR 36.10(2)(b)).
[B] is the correct advice to give as it accurately reflects CPR 36.10(2)(b)(i) and (3). The fact pattern indicates that there has been a change of circumstance on receipt of uncertain and unhelpful expert reports leading to the likelihood that the court will grant permission to withdraw the offer.
[C] is not correct. The change of terms has effect on the expiry of the relevant period (CPR 36.10(2)(a)). Currently, Martin is still within the relevant period to accept and can seek to do so under CPR 36.10 (2)(b) but Grazier may apply to the court for permission to withdraw the offer if the offeree has served notice of acceptance within the relevant period (CPR 36.10(2)(b)).
[D] is not the correct advice. CPR 36.9 and 36.10 do not make provision for the offeree (Martin) to make an application to accept a Part 36 offer which has been withdrawn. It is for the offeror (Grazier) to apply to the court for permission to withdraw the offer if the offeree has served notice of acceptance within the relevant period (CPR 36.10(2)(b)).
 

Question 10

Attempts to settle the claim are unsuccessful. Three weeks after service of the single joint veterinary expert’s report, Martin tells you that he is dissatisfied with the report as he considers that the veterinary expert has failed to take into account all the relevant evidence and failed to provide a clear opinion on liability.
Martin’s concerns go beyond points of clarification. Martin asks what action he can now take.
In the first instance, what is the correct advice to give Martin if he wishes to put questions to the single joint expert which go beyond points of clarification?
[A] Martin cannot put written questions to the single joint expert, but he should seek permission to obtain his own expert’s report.
[B] Martin should seek the other parties’ consent to put written questions to the single joint expert.
[C] Martin should put written questions to the single joint expert but can only do so with the court’s permission.
[D] Martin cannot put written questions to the single joint expert, and he should seek permission for the parties to jointly instruct a second expert.

Answer 10

Answer:
[B] Martin should seek the other parties’ consent to put written questions to the single joint expert.

Rationale:
[A] is incorrect as it is possible for Martin to put written questions to the expert although he requires the other parties’ consent - see reasoning in B.
[B] is correct. It is apparent from the fact pattern that Martin is within the deadline of 28 days to put written questions to the joint expert (CPR 35.6(2)(b)). However, it is also clear that his points go beyond clarification and therefore he needs the consent of the other side or that of the court (CPR 35.6(2)(c)). In the first instance, as required by the question, he should seek the other parties’ consent before making application to the court, if needs be.
[C] is incorrect as if Martin obtains the other parties’ agreement then he may put questions to the expert as provided for at CPR 35.6(2)(c).
[D] is incorrect as it is possible for Martin to put written questions to the expert although he requires the other parties’ consent - see reasoning in B.
 

Question 11

A month before the trial is due to commence you are informed that one of Martin’s lay witnesses, his farm manager Roy, is unable to attend trial as he has been diagnosed with a serious illness for which he requires ongoing hospital treatment. A witness statement has been served containing Roy’s evidence in accordance with the case management directions. At this stage, Martin notifies the parties that Roy is unwell. Roy’s evidence is helpful, though not essential, as it only corroborates Martin’s evidence as to how he fed the food supplement to the ewes. Roy has said that he is willing to give evidence if he feels well enough.

What is the correct advice to give Martin as to how Roy’s evidence can still be used at trial if Roy is not well enough to attend the trial?
[A] Martin may give notice that he intends to rely on Roy’s statement as hearsay evidence on the grounds of Roy’s ill health. Martin should seek the agreement of the other parties to serve late notice, failing which an application may be made to the court.
[B] Given the requirement that facts to be proved at trial are by way of oral evidence given in public, Martin has no alternative but to summons Roy to attend court in order to rely on his evidence.
[C] Martin must arrange for Roy to give oral evidence via video link as his witness statement has been served.
[D] Martin should invite the court to allow Roy’s witness statement to stand as evidence in-chief as the witness statement has been served.

Answer 11

Answer:
[A] Martin may give notice that he intends to rely on Roy’s statement as hearsay evidence on the grounds of Roy’s ill health. Martin should seek the agreement of the other parties to serve late notice, failing which an application may be made to the court.

Rationale:
[A] is the correct answer as CPR 32.5, provides that if a party has served a witness statement, as is the case here, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence. The facts indicate that Roy is unable to attend trial due to ill health so cannot attend to give oral evidence. Martin can therefore rely upon CPR 32.5 and rely upon it as hearsay. This is further supported by the fact that the evidence is helpful but not essential. See the WB 2023 commentary at 32.5.3 which also refers to compliance with Pt 33 procedure. CPR 33.1 provides the definition of hearsay which applies here if Roy is unable to attend court to give evidence in person.
[B] is incorrect as if Roy is too unwell to attend trial to give evidence in person, Martin can rely upon Roy’s statement as hearsay evidence for the reasons given in relation to answer [A] above.
[C] is incorrect as, whilst Roy could give evidence by way of a video link if he is well enough, it is not correct to say that it is necessary for Roy to give oral evidence as his statement can be adduced by way of hearsay evidence for the reasons given above, and it is unlikely that his evidence would require cross examination.
[D] is incorrect as this statement misconstrues the rules on adducing evidence at trial under CPR 32.5(2). That rule states that where a witness is called to give oral evidence at trial, his witness statement shall stand as his evidence in chief unless the court orders otherwise. The fact pattern here indicates that Roy will be unable to give oral evidence and so his statement standing as evidence in chief is not applicable. The purpose of allowing a statement to stand as evidence in chief is not.
 

Question 12

The matter proceeds to trial. Before the hearing commences, Martin expresses to you his worries about the outcome of the trial because he has cash-flow problems. The trial proceeds, and judgment is given in favour of both Martin and Nicky, with a finding that Grazier was entirely liable for the damage caused to the sheep by the supply of an unsuitable food supplement and Martin’s consequential losses. While critical of Nicky’s delayed diagnosis, the Judge did not consider that Nicky’s actions amounted to negligence.

What is the most likely costs order that the Judge will make?
[A] An order that Grazier pays Martin’s costs and that Grazier and Martin each pay 50% of Nicky’s costs.
[B] An order that Grazier pays Martin’s costs and that Martin pays Nicky’s costs.
[C] An order that Grazier pays Martin’s costs and for Nicky to pay her own costs.
[D] An order that Grazier pays Martin’s costs and for Grazier to pay Nicky’s costs directly to her.

Answer 12

Answer:
[D] An order that Grazier pays Martin’s costs and for Grazier to pay Nicky’s costs directly to her.

Rationale:
[A] is incorrect as there is no suggestion that Martin behaved unreasonably by suing Nicky as well as Grazier. The WB 2023 commentary at 44.2.28 (first six paragraphs) states that where a claimant cannot establish which defendant was at fault it is reasonable for him to sue both. Martin should therefore not be penalised in costs for making this decision.
[B] is incorrect for the same reasons as [A] above.
[C] is incorrect as, despite the judge’s apparent criticism of Nicky, she was still found not liable and should therefore not be penalised in costs. There is no suggestion she behaved unreasonably or in such a way as to merit an order that she bear her own costs (CPR 44.2).
[D] The correct order to ask for in these circumstances is a Sanderson order which is described here. Grazier is the unsuccessful defendant. Nicky is the successful defendant. Martin is the unsuccessful claimant against Nicky and the successful claimant against Grazier. A strict application of the general costs rule would require that Martin should pay Nicky’s costs and that Grazier should pay Martin’s costs but the court’s discretion as to whether costs are payable by one party to another under CPR 44.2(1)(a) is wide enough to enable it to order that the unsuccessful defendant, here, Grazier, should pay Nicky’s costs directly. There is an indication in the fact pattern that Martin’s financial position is precarious and so it would afford greater protection to both Martin and Nicky if the costs were paid directly to Nicky by Grazier (see WB 2023 commentary at 44.2.28 (first six paragraphs)).
 

Question 13

On 10 January 2023, the claim was issued in the County Court with a statement of value of £40,000 to £45,000.
On 10 March 2023, the claim was served, along with the particulars of claim.
On 31 March 2023, Paula filed a defence denying liability for the accident and stating that Frank crossed the junction while a red light was showing against him. She also raises issues with Frank’s symptoms, saying that his medical records do not support his current reporting of his cognitive symptoms.
The court has provisionally allocated the case to the multi-track and sent Directions Questionnaires to both parties. Frank’s solicitors seek your advice about cost budgeting.
Unless the court orders otherwise, what is the correct procedure for Frank’s solicitors to adopt in relation to filing and exchanging Frank’s costs budget in this case?
Frank’s solicitors should
[A] at least 21 days before the first case management conference, file and exchange a full costs budget using the complete Precedent H form.
[B] at least 21 days before the first case management conference, file and exchange only the front page of the Precedent H form.
[C] file and exchange a full costs budget using the complete Precedent H form with Frank’s Directions Questionnaire.
[D] file and exchange only the front page of the Precedent H form with Frank’s Directions Questionnaire.

Answer 13

Answer:
[D] file and exchange only the front page of the Precedent H form with Frank’s Directions Questionnaire.

Rationale:
[A] is incorrect – see explanation for [D].
[B] is incorrect – see explanation for [D].
[C] is incorrect – see explanation for [D].
[D] Correct. As the claim is currently limited to £50,000, Frank’s solicitors must file his costs budget with his directions questionnaire (see CPR 3.13(1)(a)) using only the front page of Precedent H (see Practice Direction 3E paragraph3). See Practice Direction paragraphs 3-5. (3 through to 5)

Question 14

On that report, the police have written:
“Scooter went through green light.”
Alongside this sentence, Frank has written:
“Did I? Make sure of this.”
Frank explained to his solicitors that he wrote this comment as his own personal reminder when he first received a copy of the report because initially he could not remember exactly how the accident happened. He has never shown the amended report to anyone else, but the original of the document (without Frank’s comment) was disclosed to Paula as part of the pre-action correspondence.
Frank’s solicitors are not sure whether the amended report needs to be disclosed or not, so they ask for your advice.

Does Frank’s amended report need to be disclosed, and why?
[A] No, because the amended report is privileged.
[B] Yes, because Frank has marked the amended report and it is a document which adversely affects his own case.
[C] No, because it has already been disclosed.
[D] Yes, because any previously disclosed document which has been marked in any way must be disclosed.

Answer 14

Answer:
[B] Yes, because Frank has marked the amended report and it is a document which adversely affects his own case.

Rationale:
[A] Wrong. On the facts here, no privilege attaches to this document. It is not legal advice, it was not created with a view to litigation etc. see White Book 2023 commentary at 31.3.6, 31.3.8, and 31.3.11. In any event, the original police accident report has already been disclosed as part of pre-action disclosure, thus even if litigation privilege did attach, it has already been waived.
[B] Correct. As Frank has written on the document and it could support Paula’s case, it is a copy of a document which contains a “modification, obliteration, or other marking or feature” and is therefore treated as a separate, disclosable, document. See CPR 31.9 which provides that a copy of a document that contains a modification or marking on which a party intends to rely or which adversely affects his own case or another party’s case or supports another party’s case shall be treated as a separate document.
[C] Wrong. See correct answer. This is not an exact copy and therefore needs disclosing.
[D] Wrong. See correct answer. Not every marked or modified document must be disclosed, but only those on which the disclosing party intends to rely or which adversely affects or supports the case of another party. See CPR 31.9.

Question 15

Frank’s solicitors follow your advice and act accordingly.
On receipt of Paula’s disclosure list, Frank is surprised not to see dashcam footage from her vehicle among the disclosed documents. He says that it is recorded in the police report that Paula mentioned having a dashcam in her car.
Paula’s solicitors have ignored requests for disclosure of any dashcam footage and have not confirmed whether it exists or not.
Frank’s solicitors ask for your advice as to how they should go about obtaining disclosure of any dashcam footage.
What is the best advice to give Frank’s solicitors about how to obtain disclosure of any dashcam footage?
Frank’s solicitors should
[A] file an application with the court for specific disclosure, putting Paula’s solicitors on notice of the application, and serve it as soon as practicable thereafter.
[B] file an application with the court for specific disclosure, putting Paula’s solicitors on notice, but serve the application on Paula’s solicitors a day before the hearing of the application.
[C] file an application with the court, without notice to Paula, for specific disclosure, and serve it as soon as practicable after the hearing.
[D] file a without-notice application for specific disclosure with the court, but wait to serve it until at least 3 days before the court is to deal with the application.

Answer 15

Answer:
[A] file an application with the court for specific disclosure, putting Paula’s solicitors on notice of the application, and serve it as soon as practicable thereafter.

Rationale:
[A] This is the best advice. At the moment, there is no good reason for the application to be without notice. The court can order specific disclosure (see CPR 31.12 SA14) and applications may be without notice, but it must be permitted by a rule, practice direction, or order (see CPR 23.4), equally service must be made of the application as soon as practicable (CPR 23.7(1)(a))
[B] This is not the best advice you could give. Service of the application notice must be made “as soon as practicable” after filing (see CPR 23.7(1)(a)), whilst the court can treat a shorter period as sufficient notice (CPR 23.7(4)), you do not need to run the risk of the court rejecting that argument.
[C] This is not the best advice you could give. See the correct answer for reference to why this is not best made without notice.
[D] This is not the best advice you could give. Whilst service of the application should be made (unless another rule or practice direction specifies) at least 3 days before the application hearing, there is no good reason not to serve it as soon as practicable after filing it. There is no good reason for it to be without notice. By waiting, time will have passed and therefore logically the application cannot be said to have been served as soon as practicable.
 

Question 15

As a result of that joint statement, Frank’s solicitors successfully apply to amend the statement of value to “up to £200,000”, including ongoing claims for care and assistance from Frank’s wife, and some loss of earnings later in life.
Frank’s instructions are that he wants to attempt to settle the case now but does not want to give Paula’s solicitors long to think about it. He wants to put some pressure on Paula to accept whatever offer is made and is keen to ensure that he can recover the costs which he has reasonably and proportionately incurred. He instructs his solicitors to make an offer of £150,000.
Frank’s solicitors estimate their costs at around £75,000 to date.
What is the best advice to give Frank’s solicitors to ensure that any settlement reached reflects Frank’s instructions?
Frank’s solicitors should make a
[A] Calderbank offer for £150,000, open for 7 days, with costs to be assessed if not agreed upon acceptance.
[B] Part 36 offer for £225,000, inclusive of costs, open for acceptance within 21 days.
[C] Part 36 offer for £150,000, open for acceptance within 21 days, stating that, after that time, it will be automatically withdrawn.
[D] Part 36 offer for £150,000, open for acceptance within 14 days, stating that, after that time, it will be automatically withdrawn.

Answer 15

Answer:
[C] Part 36 offer for £150,000, open for acceptance within 21 days, stating that, after that time, it will be automatically withdrawn.

Rationale:
[A] This is not the best advice you can give. The best way to ensure that Frank is able to recover his entitlement to costs is to settle by way of Part 36, which has strict rules about costs. Calderbank offers do not come with that same security and leave interpretation of the offer open to challenge (see Part 36 generally and Calderbank)
[B] This is not the best advice you can give. A part 36 offer cannot be expressed in terms inclusive of costs, given that the rules specify exactly what the costs consequences of acceptance must be in order for it to be a valid Part 36 offer. This will stand only as a Calderbank offer. This also does not provide for withdrawal of the offer, and it will remain open for acceptance unless withdrawn. (see CPR 36.2(2) and 36.5). It would also be contrary to the client’s instructions.
[C] This is the best advice you can give. To ensure the fullest recovery of costs possible for Frank, the offer should be in Part 36 form. Part 36 allows for offers which are automatically withdrawn after a certain time, which puts pressure on Paula to accept it, however they must still be open for a minimum period of 21 days in order to be valid Part 36 offers (see CPR 36.9(4)(b)) and CPR 36.5(1)(c).
[D] This is not the best advice you can give, a Part 36 offer must be open for acceptance for 21 days.

Question 16

Upon receipt of the admission, Frank’s solicitors write to Paula’s requesting an interim payment of £5,000 to cover the cost of paying privately for the specialist cognitive rehabilitation treatment which Frank is still waiting for.
The NHS waiting list for this treatment is long and Frank does not expect to receive free NHS treatment for some time.
Paula’s solicitors refuse the request, saying that they do not believe that Frank needs the treatment, and that they will obtain their own expert evidence on the issue.
Frank’s solicitors are not sure whether they are able to apply for an interim payment in this case and so ask for your advice.

Can Frank apply at this stage for an interim payment, and why?
[A] No, because Paula has not admitted that she will have to pay a substantial amount of money to Frank, only that she is liable to pay damages, which have yet to be assessed.
[B] Yes, because the court will give judgment against Paula for damages to be assessed.
[C] No, because the issue as to whether Frank needs the treatment is not settled and the court cannot be satisfied that Frank will use any interim payment for that treatment.
[D] Yes, because Paula has admitted liability to pay damages and the sum requested is a reasonable proportion of the likely amount of the final judgment.

Answer 16

Answer:
[D] Yes, because Paula has admitted liability to pay damages and the sum requested is a reasonable proportion of the likely amount of the final judgment.

Rationale:
[A] Wrong. The rules only require that the defendant has admitted liability to pay damages to the claimant (CPR 25.7(1)(a)). It is a part of the decision of the court that the sum must be no more than a reasonable proportion of the likely judgment (CPR 25.7(4)), that is not something that the Defendant has to admit.
[B] Wrong. That is the wrong condition and comes from CPR 25.7(1)(b). Whilst in this case Frank may obtain judgment for damages to be assessed, he has not yet done so.
[C] Wrong. There is nothing in the rules which says that the Claimant must show what they will spend the money on, the test is only that the sum is a reasonable proportion of the total likely judgment.
[D] Correct. Frank has an admission from Paula to pay some money. This is a claim currently pleaded at £40,000 - £45,000 and Frank has sustained serious injuries. The court can grant an interim payment where an admission has been made to pay damages and that the sum asked for is a reasonable proportion of the likely amount of the final judgment (CPR 25.7).

Question 17

Amir wishes to bring a claim for damages for personal injury. Your instructing solicitors have complied with the relevant pre-action protocol on Amir’s behalf. Sunrise has denied liability on the grounds that it took all reasonable care to ensure the floor was clear of spillages of liquid and other hazards. It is Sunrise’s defence that there was a reporting system in place for hazards and, in any event, the cleaning of the floors was the responsibility of Able Limited (“Able”), a cleaning company subcontracted by Sunrise. Negotiations have not resulted in a settlement agreement and your instructing solicitors have advised that the next step is for Amir to issue proceedings.
It is now 4 September 2023. You are asked to advise Amir on limitation.
What is the correct advice to give Amir as to the month and year in which the limitation period will expire in his case?
The limitation period will expire in
[A] October 2023.
[B] November 2023.
[C] June 2024.
[D] October 2026.

Answer 17

Answer:
[D] October 2026.

Rationale:
[A] is incorrect. This date marks the month in which Amir turns 18. Section 28 makes clear that Amir has 3 years from the date of his 18th birthday (when he ceases to be under a disability for the purposes of limitation) to bring his claim.
[B] is incorrect. This date is 3 years from the accident and, if there were no issue as to knowledge, would mark the end of the limitation period if Amir had been an adult at the date of the accident. Amir was under a disability at the time of the accident and so s.28 needs to be applied which displaces s.11.
[C] is incorrect. This date is 3 years after Amir acquired the necessary knowledge to bring a claim, i.e. that his latest neuro symptoms were attributable to the accident in 2020. However, he was still under a disability at this time and so the s.28 provisions continue to apply.
[D] is correct. This date is 3 years after Amir’s 18th birthday. This is the correct answer in accordance with s.11 and s.28 LA 1980. This is a claim for personal injury so s.11 LA 1980 applies. Under s.11 the applicable period is three years from the date of the accident or the date of knowledge (if later). In the circumstances of Amir’s accident, it would be three years from the date of the accident, which would ordinarily mean that limitation would expire on 15th November 2023. However, Amir was 15 years old when the accident occurred. He was therefore under a disability as defined by s.38(2) LA 1980. As such, the provisions under s.28(1) and s28(6) apply. Those rules provide that a claim may be brought at any time before the expiration of three years from the date a claimant ceased to be under a disability notwithstanding that the period of limitation has expired. Amir ceases to be under a disability on his 18th birthday on 2 October 2023
s.11 LA 1980, s.28, s.38(2) LA 1980

Question 17

Frank calls his solicitors and says that, due to completely unrelated reasons, his relationship with his wife, Sherry, has broken down and that she will no longer be willing to attend court to give evidence on his behalf, which had been focused on his claim for care and assistance including the notional cost of her looking after him. This aspect of the claim is pleaded at £40,000.
Frank’s solicitors have a signed and dated witness statement from Sherry, which has already been served on Paula, but are conscious that, without Sherry’s attendance, the Judge will attach little or no weight to Sherry’s evidence.
They ask for your advice as to how best to ensure that Sherry’s evidence is given the most weight.
What is the correct advice to give as to what Frank’s solicitors should do to ensure that Sherry’s evidence is given the most weight possible in the circumstances?
Frank’s solicitors
[A] do not need to do anything as there is no restriction on hearsay evidence in civil proceedings.
[B] should inform Paula as soon as possible that Sherry is not being called to give oral evidence, and give the reasons why.
[C] should file a witness summary as soon as reasonably practicable with the court.
[D] should make an application to the court for permission to cross-examine Sherry as a hostile witness.

Answer 17

Answer:
[B] should inform Paula as soon as possible that Sherry is not being called to give oral evidence, and give the reasons why.

Rationale:
[A] Wrong. Whilst hearsay evidence is not excludable as a matter of evidence, the weight attached to it will be less if nothing is done. See correct answer.
[B] Correct. The court could receive hearsay evidence without the requisite notice, but it will adversely affect the weight which can be attached to that evidence if a notice isn’t served. A party must put the evidence in as hearsay if they want to rely on it (see Civil Evidence Act 1995 Sections 1-4, and section 2(4)(a) CEA 1995 in particular; CPR 32.5; and WB 2022 commentary at 32.5.3) See CPR 3.1(2)(a) The Court’s General Powers of Management, SA13. Even though ordinarily the notice would be given at the same time as serving the witness statement, the court can exercise its discretion to that rule. See also CPR 32.1.
[C] Wrong. A witness summary is for use instead of a witness statement or where one can’t be obtained. Here you already have a statement which has been signed and served.
[D] Wrong. This provision does not apply to hearings which are a trial, does not affect the weight that will be given to the statement, which is necessarily hearsay evidence, and does not guarantee Sherry’s attendance in any event. This is taken from CPR 32.7, SA19.

Question 18

The correct steps are taken by Frank’s solicitors in relation to Sherry’s evidence.
One week before trial, following a period of negotiation between the parties, Frank’s solicitors receive a last-minute Part 36 offer from Paula’s solicitors in the sum of £120,000.
Frank wishes to accept the offer, and his solicitors confirm acceptance with Paula’s solicitors. The parties write to the court informing the court that the matter has settled and that the parties are currently attempting to agree costs.
The court acknowledges the notification that the parties have settled and vacates the trial, asking the parties to update the court when negotiations on costs are completed.
It takes two weeks for the parties to agree the costs Paula will pay Frank.
Frank’s solicitors seek advice as to what they should do to record the settlement reached between the parties.
What is the best advice to give Frank’s solicitors in response?
They should
[A] write to the court setting out the terms of the agreement; the court will then draft the order and send it out to the parties.
[B] draw up a Tomlin order, send it to Paula’s solicitors to sign, and then file it with the court.
[C] draw up a consent order, send it to Paula’s solicitors to sign, and then file it with the court.
[D] draw up a consent order, send it to Paula’s solicitors to sign, and then file three copies of it with the court.

Answer 18

Answer:
[D] draw up a consent order, send it to Paula’s solicitors to sign, and then file three copies of it with the court.
 
Rationale:
[A] This is not the best advice you can give. The order will need to be drawn up by the parties as it is a consent order (see correct answer for references)
[B] This is not the best advice you can give. A Tomlin order is unnecessary here because there are no terms of the settlement which need to be kept confidential. In any event the procedural element is incorrect because the rule requires that three copies should be filed with the court in these circumstances see explanation at [D] for details. See commentary at paragraph 40.6.2 in the 2022 White Book. “A Tomlin order is not necessary where…….”
[C] This is not the best advice you can give. You must file enough copies of the order with the court so that it can retain one and serve the others on all parties.
[D] This is the best advice you can give. Consent orders will be drawn up by the parties (CPR 40.3(1)(d)), must contain enough copies to be served on everyone and one to be retained at court (CPR 40.4(1)(a)), and must be signed by all parties to the agreement (CPR 40.6(7)(c)). Please also see CPR 36.14(7), regarding non-payment and judgment.

Question 19

Amir’s solicitor issues the claim on 9 October 2023 and notifies the court that her firm intends to serve the claim form on Sunrise itself. Damages are expected to be in the region of £20,000. A few days later, Amir’s solicitor begins maternity leave. Amir’s file is handed over to Paul, a more junior solicitor in the firm’s PI department. On 7 December 2023, Paul realises that Amir’s claim form remains to be served on Sunrise. Paul telephones Amir to explain the situation and apologise. Amir, who is angry about the oversight, tells Paul he wants the claim dealt with without delay from this point onwards.
Paul immediately instructs you to draft the particulars of claim and return them to him as soon as possible so they can be served with the claim form. You explain to Paul that you are currently in a trial and the earliest you will be able to complete the particulars of claim is 14 December.

Assuming that no application is made to the court, what is the latest date by which the particulars of claim must be served on Sunrise?
The particulars of claim must be served on Sunrise by midnight on
[A] 9 January 2024.
[B] 23 January 2024.
[C] 9 February 2024.
[D] 23 February 2024.

Answer 19

Answer:
[C] 9 February 2024.

Rationale:
[A] is wrong. Amir has 4 months to serve his claim form on Sunrise (CPR 7.5(1)). This date is only 3 months from the date of issue. In any event he has 14 days after the service of the claim form to serve the particulars of claim provided they are served no later than the latest time for serving the claim form (CPR 7.4(2)). In this case that date is 9 February 2024.
[B] is wrong. This is not the latest date available for serving the particulars of claim for the reasons given in [A] above.
[C] is correct. The claim form must be served by 9 February and the particulars of claim cannot be served later than the last date for service of the claim form. CPR 7.4(2)
[D] is wrong Amir cannot serve the particulars of claim after the last date for serving the claim form.
CPR 7.4(2) and CPR 7.5(1)
 

Question 20

In view of Amir’s concerns about unnecessary delays, what is the best advice to give to his solicitors as to how to respond to Sunrise’s request for an extension of time for service of the defence?
Amir’s solicitors should be advised to
[A] agree to the extension of time for service of the defence. The extension requested is not unreasonable and a refusal to agree could increase costs unnecessarily by forcing Sunrise to issue an application to the court seeking an order for the extension it seeks.
[B] refuse to agree an extension of time for service of the defence on the grounds that the lack of evidence preventing Sunrise from bringing an additional claim against Able will not prevent Sunrise from filing and serving a defence in the main action.
[C] inform Sunrise that if it wishes to obtain an extension of time for service of the defence then Sunrise must issue an application to the court for an order for this extension to be granted, which Amir will not oppose.
[D] refuse to agree an extension of time for service of the defence as, if Sunrise then fails to file and serve the defence in time, Amir can apply for judgment in default.

Answer 20

Answer:
[A] agree to the extension of time for service of the defence. The extension requested is not unreasonable and a refusal to agree could increase costs unnecessarily by forcing Sunrise to issue an application to the court seeking an order for the extension it seeks.

Rationale:
[A] The best advice here would be to agree to the extension of time for service of the defence. The extension requested is not unreasonable and a refusal to do so could increase costs unnecessarily by forcing Sunrise Hotel to issue an application to the court seeking an order for the extension they seek.
This is the best advice as it operates within the rules permitting the parties to agree an extension of time for service of the defence of up to 28 days under CPR 15.5. The defendants have acknowledged service within the required time CPR 10.3 and are seeking an extension before the time required to serve the defence (CPR 15.4). The parties can agree an extension pursuant to CPR 15.5. The time requested is the maximum permitted under the rules (28 days) but is still within the time allowed for the parties to agree by consent.
The reasons given for seeking the extension appear reasonable in the circumstances. Amir was on notice from the pre-action communications that Sunrise was seeking to blame Able and it would be quicker and cheaper for Sunrise to seek to add Able as an additional party at the same time as filing its defence. It is therefore likely that a court would allow the extension if the defendant was forced to seek such an order. Amir is therefore best advised to agree this extension to avoid unnecessary costs being incurred by the defendant who would be likely to issue an application if their request were refused.
[B] is not the best advice as, whilst Sunrise could file and serve a defence within the requisite time period without including a claim against Able, and could seek to join Able in at a later date thereby avoiding the need for the extension sought, this would increase costs unnecessarily as they would need to seek the court’s permission to include Able as an additional party after filing their defence (CPR 20.7(3)(b) – SA9 – multiple causes of action, counterclaims and other additional claims).
[C] is not the best advice as requiring the defendant to issue an application when there are no reasonable grounds to refuse will increase costs unnecessarily. The rules allow the parties to agree to an extension under CPR 15.5.
[D] is not the best advice as, whilst Amir could proceed on that basis (CPR 15.3), this is an uncertain step for Amir to take as it is highly unlikely that Sunrise will fail to file a defence as they are aware of the deadline and are taking steps to comply with the rules by seeking an extension pursuant to CPR 15.5.
CPR10.3, CPR 15.3, CPR 15.4, CPR 15.5, CPR 20.7(3)(b)
 

Question 21

What is the best advice to give Amir’s solicitors as to what, if any, steps should be taken to obtain copies of the accident book and health and safety reports, and why?
Amir’s solicitors should
[A] take no further action to obtain these documents as to do so would incur unnecessary costs. Any application for an order for disclosure and inspection is unlikely to succeed as the court is likely to agree that disclosure of the accident book is disproportionate and that any health and safety reports are privileged.
[B] write to those acting for Sunrise repeating the request for disclosure of these documents on the grounds that they should have been made available during the pre-action disclosure stage. Sunrise’s failure to provide these documents at an earlier stage in the proceedings will be brought to the attention of the court when considering costs at the conclusion of the case.
[C] issue an application seeking specific disclosure of accident book entries relating only to accidents involving slipping in the hotel premises for the three years preceding Amir’s accident. Specific disclosure should also be sought of any health and safety reports as inspection may be allowed if the dominant purpose of the reports was to advise the hotel generally on cleaning procedures rather than seeking legal advice.
[D] issue an application for specific disclosure of all Sunrise’s accident book entries together with those health and safety reports related to the accident. Such evidence is clearly relevant to the issues; these are documents on which Amir would wish to rely which might adversely affect his own case, adversely affect or support Sunrise’s case.

Answer 21

Answer:
[C] issue an application seeking specific disclosure of accident book entries relating only to accidents involving slipping in the hotel premises for the three years preceding Amir’s accident. Specific disclosure should also be sought of any health and safety reports as inspection may be allowed if the dominant purpose of the reports was to advise the hotel generally on cleaning procedures rather than seeking legal advice.

Rationale:
[A] is not the best advice as there are further steps Amir could and should take to try to obtain these documents, the most effective being to make an application for specific disclosure pursuant to CPR 31.12.
[B] is not the best advice as Amir’s solicitors have already tried and failed to obtain these documents through a written request and so it is unlikely that they will get a positive response on the second time of asking. It may be correct to say that these documents should have been made available during the pre-action protocol stage, and the court may take this into account when considering costs, but that approach is unlikely to yield the results which could be achieved by issuing an application for specific disclosure.
[C] The best advice to give is that Amir’s solicitors should issue an application seeking specific disclosure of accident book entries relating only to accidents involving slipping in the hotel premises. Specific disclosure should also be sought for any health and safety reports but inspection will only be allowed if the dominant purpose was to advise the hotel generally on cleaning procedures rather than seeking legal advice.

Sunrise must comply with standard disclosure pursuant to CPR 31.6. The accident book and related health and safety reports come within that definition. Where a party fails to disclose documents, the court may make an order for specific disclosure under CPR 31.12. When making the order the court will take into account all the circumstances of the case and will need to satisfy itself as to the relevance of the documents sought. The court will have regard to the pleadings and issues in dispute (see the WB 2022 commentary at 31.12.2. It is apparent that the evidence of previous similar accidents is relevant to the issues and it is therefore likely the court will consider the accident book should be disclosed, but not in its entirety as that is likely to be disproportionate (WB 2022 commentary at 31.3.4).

Amir should seek disclosure of any health and safety reports. It is implicit from the fact pattern that the health and safety reports were prepared at the time of Amir’s accident and so the first part of the test for privilege, that litigation was contemplated or pending at the time the health and safety reports were sought, is satisfied. However, Amir needs to be warned that inspection may be prevented on the grounds of litigation privilege if the dominant purpose of the report was for receiving legal advice in existing or contemplated proceedings (see the WB 2022 commentary at 31.3.9).

[D] is not the best advice as, whilst it is recommended that Amir make an application for specific disclosure, and the documents sought appear to come within standard disclosure under CPR 31.6, the effectiveness of his application may well be undermined if he seeks disclosure of the full accident book as the court may well consider that to be disproportionate (WB 2022 commentary at 31.3.4). The court may also view any health and safety reports as privileged for the reasons given above (and see the WB 2022 commentary at 31.3.9).
 

Question 21

What is the best advice to give Amir’s solicitors as to the factors that the court is likely to consider when determining the application?
In considering Amir’s application, the court will have regard to
[A] the overriding objective; the need to strike a balance between injustice to Amir if it refuses the application and injustice to Able and other litigants in general if it grants the application; and it may consider whether Amir’s amended claim has some prospects of success.
[B] the overriding objective; the need to strike a balance between injustice to Amir if it refuses the application and injustice to Able and other litigants in general if it grants the application; and why justice to Amir, Able, Sunrise and other court users requires Amir to be able to amend his case.
[C] whether Amir has provided a good explanation as to why the application is necessary; whether his amended case is strong; and why justice to Amir, Able, Sunrise and other court users requires Amir to be able to amend his case.
[D] whether the amendment of Amir’s particulars of claim is necessary because he would be unable to properly continue his claim against Able unless the amendment were made.

Answer 21

[A] the overriding objective; the need to strike a balance between injustice to Amir if it refuses the application and injustice to Able and other litigants in general if it grants the application; and it may consider whether Amir’s amended claim has some prospects of success.

Rationale:
[A] is the best advice. This approach correctly summarises the first paragraph of the commentary at WB 2022 commentary at 17.3.5 and is therefore the best advice to give Amir in this case.
[B] is not the best advice. This distractor combines the first two factors to be taken into account by the court as per the commentary at WB 2022 commentary at 17.3.5 but omits the last (some prospects of success) and includes the final factor to be taken into account when the court is considering a very late application (see explanation for [C] below) see WB 2022 commentary at 17.3.8
[C] is not the best advice. These are the hurdles for an applicant to meet when making a very late application to amend which will cause the trial date to be lost. The fact pattern makes clear that no case management decisions have yet been made, thus there is no prospect of a trial date being lost. see WB 2022 commentary at 17.3.8
[D] is not the best advice. This is the test for adding or substituting a party after the expiry of the limitation period and has no application in this case.

 

Question 22

What is the best advice to give Amir as to the most likely order the court will make in response to Sunrise’s application for summary judgment against Able?
The court is most likely to
[A] grant summary judgment in favour of Sunrise on its additional claim as it is clear that Able has no real prospect of successfully defending the claim brought against it by Sunrise and there is no other compelling reason why the case or issue should be disposed of at trial.
[B] make a conditional order against Able which would require Able to pay a sum of money into court or to take a specified step in relation to its defence to the additional claim, and which provides that the defence to the additional claim would be struck out if it does not comply.
[C] grant summary judgment in favour of Sunrise on the particular issues relating to the failure to clear up the spillage, failure to erect warning signs, and whether the spillage was a hazard, but allow Able to defend the additional claim on the issues arising from Sunrise’s duties as owner and occupier of the premises where the accident occurred.
[D] dismiss the application for summary judgment on the grounds that Able has a real prospect of successfully defending the additional claim on some, if not all, of the issues in dispute.

Answer 22

Answer:
[B] make a conditional order against Able which would require Able to pay a sum of money into court or to take a specified step in relation to its defence to the additional claim, and which provides that the defence to the additional claim would be struck out if it does not comply.

Rationale:
[A] is not the best advice as there is still a possibility that Able has a real prospect of successfully defending the claim on the grounds that the accident occurred at Sunrise’s premises and the issues which remain in dispute are a compelling reason why the claim should proceed to trial. It is therefore by no means certain that the legal test under CPR 24.2 will be satisfied in Sunrise’s favour.
[B] The best advice to give in these circumstances is that the court is likely to grant a conditional order against Able. The evidence suggests that it is possible Able has a defence on the grounds that the accident occurred at premises owned and occupied by Sunrise but it is improbable that it will succeed due to the contractual relationship between the parties and the admissions Able has made.
In order to obtain summary judgment, Sunrise must satisfy the court under the criteria set out in CPR 24.2. The facts suggest that Able has a weak defence and may therefore fail to convince a court that it has real prospects of successfully defending the claim. If the court considers a defence to be possible but improbable, it has the power to make a conditional order pursuant to CPR 24.6 with reference to PD24 paras 4 and 5 and the WB 2022 commentary at 24.6.6.
[C] is not the best advice as, whilst the court can order summary judgment on a particular issue (CPR 24.2) it is unlikely to do so where there is still some prospect of successfully defending the claim where issues remain in dispute, and there is a conflict of evidence, despite an admission in relation to part of that issue. Able admits to the delay in clearing up the spillage and failure to erect warning signs but has evidence that the spillage was not a hazard. The WB 2022 commentary at 24.2.3 states that the court must not conduct a “mini-trial”. There appears to be a conflict of evidence on this issue which may persuade a court not to enter summary judgment in these circumstances.
[D] is not the best advice as the evidence suggests that Able has a weak defence and the court is more likely, in these circumstances, to grant a conditional order in line with its powers at CPR 24.6 to protect the applicant (Sunrise). This statement also makes no mention of the second limb of the test under CPR 24.2, that there is no other compelling reason why the case or issue shall be disposed of at trial.
 

Question 23

If all procedural requirements are complied with, on whom, where, and how should Auto serve the claim form?
The claim form should be served on
[A] White LLP, or on SL, by way of personal service.
[B] White LLP, at White LLP’s email address or by first-class post to, or by leaving at, White LLP’s business address.
[C] SL, by posting to, or by leaving at, SL’s principal office.
[D] White LLP, by first-class post to, or by leaving at, White LLP’s business address; but not by email, which is not permissible.

Answer 23

Answer:
[B] White LLP, at White LLP’s email address or by first-class post to, or by leaving at, White LLP’s business address.

Rationale:
[A] Incorrect. See explanation for [B]. See also CPR 6.5(2)(a) which excludes the use of personal service as a method where rule 6.7 applies.
[B] Correct. CPR 6.7(1) provides that a C must effect service on solicitors if it has been notified that solicitors are authorised to accept service on behalf of the D. This is not optional. An email in a header indicates service by email is permissible where it is indicated that the email address may be used for service (as here) 6A PD 4.1(2) but that does not make email the only permissible method of service.
[C] Incorrect. See explanation for [B].
[D] Incorrect. See explanation for [B].
 

Question 23

Auto’s solicitors ask for your advice as to what procedure should be followed prior to the interim injunction hearing (“the hearing”).
What is the correct advice to give Auto’s solicitors in response to this query?
Before the hearing, Auto
[A] must issue an application notice. This should be filed with the court together with evidence in support at the hearing or, if this is not possible, within two working days of the hearing.
[B] should issue an application notice, and, if possible, file the application notice, evidence in support and a draft order, two hours before the hearing.
[C] should provide a draft order and undertake to issue and file an application notice and claim form on the next working day or as ordered by the court.
[D] must file with the court an issued application notice, evidence in support and a draft order, and serve them on SL at least two hours before the hearing.

Answer 23

Answer:
[B] should issue an application notice, and, if possible, file the application notice, evidence in support and a draft order, two hours before the hearing.

Rationale:
[A] Incorrect. There is no requirement to issue an application notice before the hearing – see PD25A para 4.3(2). This is not correct, as it sets out the procedure where the application is made before the application notice has been issued. Further the procedure is incorrect because, where this takes place the draft order, application notice and evidence in support should be filed with the court on same or next working day. [A] is wrong. Amir has 4 months to serve his claim form on Sunrise (CPR 7.5(1)). This date is only 3 months from the date of issue. In any event he has 14 days after the service of the claim form to serve the particulars of claim provided they are served no later than the latest time for serving the claim form (CPR 7.4(2)).
[B] Correct. See PD 25A para 4.3 for procedure after issue of the claim form and specifically para 4.3(1). This provides that the application notice, evidence in support and a draft order should be filed with the court two hours before the hearing wherever possible.
[C] Incorrect. Although this procedure would be acceptable where there had not been time to issue an application notice, there is no need to undertake to issue a claim form as the claim has already been issued.
[D] Incorrect. There is no requirement to serve on the Respondent in this way.

Question 24

It is now 15 May 2024. Amir’s solicitors contact you with the news that Able has accepted liability for Amir’s accident and has made an offer to settle Amir’s claim in the sum of £10,000 with costs to be assessed on the standard basis if not agreed. The offer does not expressly refer to Part 36 but has been made by way of a letter headed “offer to settle”. The letter states simply that the offer is made in relation to the whole of the claim and is open for acceptance within 21 days, after which time it will be withdrawn.
Amir’s solicitors believe that the offer may not be valid under Part 36, and, before they advise Amir about the offer and the relevant costs consequences, they seek your advice.

What is the best advice to give Amir’s solicitors as to whether the offer to settle from Able is valid under Part 36?
[A] The offer to settle is valid under Part 36 as it has been made in writing, is clearly a genuine attempt to settle the claim and provides a period for acceptance of not less than 21 days, which are all fundamental requirements for a valid Part 36 offer.
[B] The offer to settle is valid under Part 36 as, while it does not expressly state that the offer is made pursuant to Part 36, it is in writing and provides a period for acceptance of not less than 21 days. The court will consider the technical defect in the context of what the party making the offer intended and will give effect to that intention with reference to its construction.
[C] The offer to settle is not valid under Part 36 as the form and content do not comply with the mandatory requirements. The offer will therefore not have the consequences specified in Part 36.
[D] The offer to settle is not valid as a Part 36 offer as it includes a statement that the offer will be withdrawn at the end of the 21-day period. The party making the offer will need to provide formal notice of withdrawal for the offer to comply with Part 36.

Answer 24

Answer:
[C] The offer to settle is not valid under Part 36 as the form and content do not comply with the mandatory requirements. The offer will therefore not have the consequences specified in Part 36.

Rationale:
[A] is not the best advice as the failure to clearly state that the offer is pursuant to Part 36 means the offer does not comply with the technical requirements at CPR 36.5 and so it will not have the usual Part 36 consequences.
[B] is not the best advice for the same reason as [A] above. In addition, whilst the WB 2022 commentary at 36.2.4 states that the court will give effect to the intention of the party making the offer if there is a technical defect, the failure to express the offer as pursuant to Part 36 if a failure to comply with a mandatory requirement and so the offer will not have the cost consequences intended under Part 36.
[C] the best advice to give is that the offer to settle is not valid under part 36 as the form and content does not comply with the mandatory requirements as it fails to clearly state that the offer has been made pursuant to Part 36. The offer will therefore not have the consequences specified in Part 36.
CPR 36.5 sets out the mandatory requirements for the form and content of a Part 36 offer. An offer must comply with those requirements for the offer to carry the cost consequences set out in Part 36. The WB 2022 commentary at 36.5.1 provides further explanation of those mandatory requirements. It is apparent from the fact pattern that the offer made by Able Contractors complies with those requirements save for explicitly stating that the offer is made pursuant to Part 36 or perhaps with a heading of “Part 36 offer “as required under 36.1(b). It appears from the commentary that this must mean it is not valid (CPR 36.2(2)). The WB 2022 commentary at 36.2.4 states that the court will seek to validate an offer where there is a technical defect if the party making the offer intended it to be a part 36 offer. However, the WB 2022 commentary at 36.5.1 and 36.5.1.1 make it clear that one of the mandatory requirements is that the offer must “make it clear that it is made pursuant to Part 36”.
[D] is not the best advice as that statement muddles the rules relating to withdrawal of a part 36 offer (CPR 36.9) and in particular CPR 36.9(4)(b) which allows a party making the offer to withdraw the offer automatically in accordance with its terms after the expiry of the relevant period for acceptance, which is what the wording of the offer is seeking to achieve here.[D]This is the best advice you can give. Consent orders will be drawn up by the parties (CPR 40.3(1)(d)), must contain enough copies to be served on everyone and one to be retained at court (CPR 40.4(1)(a)), and must be signed by all parties to the agreement (CPR 40.6(7)(c)). Please also see CPR 36.14(7), regarding non-payment and judgment.
 

Question 25

The application for an interim injunction is heard by a High Court Master. SL does not attend the hearing. The Master refuses the injunction on the basis that damages would be an adequate remedy for Auto and therefore the American Cyanamid principles and guidelines are not established. The Master makes an order dismissing the application and this is served on SL.
The next day, Auto seeks advice on appealing the Master’s decision to refuse an injunction in respect of future events to which SL might invite Restricted Clients on the basis that the Master was wrong in law and fact.
Auto is aware that permission to appeal will be required and asks how it should now proceed.
QUESTION 29
SA24 Appeals: 24.1 (MCQ)
If Auto decides to appeal the Master’s decision, what step should it now take?
Auto should
[A] file an Appellant’s Notice at the High Court within 21 days of the Master’s decision.
[B] file an Appellant’s Notice at the Court of Appeal within 21 days of the Master’s decision.
[C] issue an interim application for permission to appeal to a High Court Judge within 21 days of the Master’s decision.
[D] file an Appellant’s Notice at the High Court within 14 days of the Master’s decision

Answer 25

Answer:
[A] file an Appellant’s Notice at the High Court within 21 days of the Master’s decision.

Rationale:
[A] Correct. CPR 52.3 provides that an application for permission to appeal may be made to the lower court at the hearing at which the decision to be appealed was made, or to the appeal court in an appeal notice. CPR 52.12 provides that where an appellant seeks permission from the appeal court, it must be requested in an appellant’s notice filed within 21 days of the decision which the appellant wishes to appeal. 52A PD 3 provides that the destination for an appeal from a High Court Master is a Judge of the High Court.
[B] Incorrect. See explanation for [A].
[C] Incorrect. See explanation for [A]. Applications for permission to the appeal court must be made in the appeal notice – rule 52.3(2)(b)
[D] Incorrect. See explanation for [A].
 

Question 26

If SL makes an application for summary judgment now, will the court take into account Auto’s argument that evidence significantly supporting Auto’s claim is likely to emerge during standard disclosure, and why?
The court
[A] will not take this argument into account because it is not relevant to the grounds for summary judgment.
[B] will take this argument into account because it is relevant to the prospects of Auto succeeding in its claim.
[C] will take this argument into account because it is relevant to considerations of whether there is a compelling reason for the case to be disposed of at trial.
[D] will not take this argument into account because SL is obliged to give full disclosure of relevant communications at the time of the application in any event.

Answer 26

Answer:
[B] will take this argument into account because it is relevant to the prospects of Auto succeeding in its claim.

Rationale:
[A] Incorrect. See explanation in relation to [B] – the court makes clear that the court must take into account evidence not yet obtained if it is likely to be available at trial.
[B] Correct. Pursuant to CPR 24.2, the court may give summary judgment for SL if C has no real prospect of succeeding on the claim and there is no other compelling reason why the case or issues should be disposed of at trial. WB 2022 commentary at 24.2.3 states that ‘In reaching its conclusion [in relation to prospects of success] the court must take into account not only the evidence placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial’. For this reason, the court will take account evidence which it considers is likely to emerge during standard disclosure.
[C] Incorrect. This is relevant to prospects – see explanation in relation to [B].
[D] Incorrect. The fact that SL is obliged to give an honest account does not mean that other evidence is not relevant.
 

Question 27

Katya receives the further information from Manuel. Manuel claims that, in the consultation process, and immediately before using the dye, he warned Katya that, due to previous colouring products used on her hair, the end result of the treatment might not result in a perfect match with the AquaMarine campaign shade.
Katya instructs her solicitors that at no point did Manuel provide any warning to her as he has claimed. However, Katya is concerned as to the nature of Manuel’s defence.

Having sought advice on the best way to protect her position, particularly in the light of Manuel’s allegation against CB about errors in CB’s written instructions for using the dye, Katya’s solicitors advised her that she should join CB as an additional party seeking a contribution or indemnity and should apply to the court for permission to do so.
Is Katya’s solicitors’ advice the best advice to have given Katya as to how she should proceed, and for what reason?
[A] No. She should await the conclusion of her proceedings against Manuel and, if she is unsuccessful in her claim against him, consider bringing fresh proceedings to recover damages against CB.
[B] No. She should first ask Manuel to consent to CB being joined as an additional party; if Manuel consents, Katya will not need the court’s permission to join CB to the proceedings.
[C] No. She should join CB as a second defendant to the proceedings and will require the court’s permission to do so.
[D] Yes. The advice given by the solicitors is the best advice in the particular circumstances of the case because it will protect Katya’s position within the proceedings.

Answer 27

Answer:
[C] No. She should join CB as a second defendant to the proceedings and will require the court’s permission to do so.
Rationale:
[A] is not the best answer. Katya could follow this course of action, but it would be more efficient and cheaper to add CB now as second Defendant rather than simply await the outcome of proceedings against Manuel.
[B] is not the best answer as it is incorrect advice as Katya requires the court’s permission CPR 19.4(1) even if Manuel consents.
[C] is the best advice. Katya has a potential claim against both Manuel and CB. To protect her position and ensure that she maximises the prospect of recovery, she should bring proceedings against them both. Proceedings have been served and therefore permission of the court is needed to join CB as an additional party (second defendant) CPR 19.4.
[D] is not the best answer as it is incorrect. Katya, as the Claimant, would not be seeking to join CB as an additional party seeking a contribution or indemnity. Katya is the Claimant not the Defendant. CB is not yet a party. CPR 20.6 provides for Defendants to bring additional claims for a contribution or an indemnity against an existing party.
 

Question 28

What is the correct advice to give Auto about the filing of a reply to defence?
[A] Auto must file a reply within 14 days of service of the defence otherwise Auto shall be taken to admit all of the allegations in the defence.
[B] Auto may file a reply at the same time as filing its Directions Questionnaire. If Auto files a reply, it must deal with all matters raised in the defence, otherwise Auto shall be taken to admit them.
[C] Auto may file a reply at the same time as filing its Directions Questionnaire. If the reply deals only with the restraint of trade allegation, then SL is still required to prove the remainder of the defence.
[D] Auto may file a reply within 14 days of service of the defence but, as there is no obligation to do so, if Auto does not file a reply, it shall not be taken to admit the matters raised in the defence.

Answer 28

Answer:
[C] Auto may file a reply at the same time as filing its Directions Questionnaire. If the reply deals only with the restraint of trade allegation, then SL is still required to prove the remainder of the defence.

Rationale:
[A] Incorrect – see explanation for [C] and rule 16.7(1). Timing also incorrect.
[B] Incorrect – see explanation for [C].
[C] Filing a reply is optional but if it is done it should be filed with the directions questionnaire. See r.15.8 and r.16.7. A claimant who fails to file a defence shall not be taken to have admitted the matters raised in the defence. If a claimant files a reply but fails to deal with a matter raised in the defence, the defendant must prove that matter event though it is not raised in the defence . Therefore, Auto can simply deal with the restraint of trade part of the defence and not respond to the remainder in the reply without any prejudice.
[D] Incorrect – see r.15.8. Timing for filing is wrong here.

Question 29

Having considered the directions order, what is the best course of action for Auto to take in order to adduce at trial this additional evidence from Thalia?
Auto should
[A] apply now for permission to serve a witness summary identifying the additional evidence which Thalia will give in evidence in-chief at trial.
[B] raise the additional evidence when cross-examining SL’s witnesses.
[C] apply to court at trial for permission for Thalia to amplify her witness statement when giving her evidence.
[D] apply now for relief from sanction seeking permission to serve an additional witness statement from Thalia.

Answer 29

Answer:
[D] apply now for relief from sanction seeking permission to serve an additional witness statement from Thalia.

Rationale:
[A] This is not the best answer. Although a possible course of action this is not appropriate here as Auto is able to serve an additional statement setting out the whole evidence whereas the requirement in r.32.9(1)(b) is that a party is unable to obtain one. A summary of evidence which is not verified by a statement of truth is much less satisfactory than a signed witness statement.
[B] This is not the best answer. This is very unlikely to result in the points which Auto wants to convey being put before the court. It would be unsafe to rely on this. Although cross examination of a witness on their statement (i.e. witness statements of SL’s witnesses) can include matters not within their own witness statement or referred to in chief (rule 32.11) the court is unlikely to allow cross examination on a new matter which amounts to a change of tack and in relation to which advance disclosure has not been given. See further explanation at [C] below.
[C] This is not the best answer. See explanation for [D]. CPR 32.5 provides that a witness giving oral evidence at trial may amplify his witness statement with the permission of the court. There must be good reason not to confine the witness to his / her witness statement. WB 2023 commentary at 32.5.2 provides that ‘a late, unjustified change of tack may be regarded as an injustice to the opponent which, in the light of the overriding objective, should not be permitted’. The proposed amplification runs a significant risk of being such a change of tack. It is therefore better to give advance notice of these additional points by serving an additional witness statement (with the court’s permission).
[D] This is the best answer. See explanations in relation to [A], [B] and [C] and note the possibility of supplemental witness statements is mentioned in WB 2023 commentary at 32.5.2. where a witness proposes to ‘add to, alter, correct or retract’ what was said in their original witness statement and permission is required. The directions in the scenario explicitly state that permission is required – see the facts before Q32. In addition the effect of rule 32.10 is that without permission such evidence cannot be adduced orally by Thalia and also see CPR 32.2.

Question 30

It is now 28 September 2023. Katya is anxious to issue proceedings against Manuel for breach of contract and negligence.
What is the correct advice to give Katya as to how she should proceed before issuing her claim?
[A] Katya must obtain her own expert evidence to calculate her loss and be able to explain the basis of that loss to Manuel.
[B] Katya should inform Manuel that, due to her financial circumstances, she will issue her claim immediately but that she will delay service of the claim form to allow time to engage in alternative dispute resolution (ADR).
[C] Katya must engage in negotiation with Manuel.
[D] Katya should write to Manuel outlining the basis of her claim against him, a summary of the facts and how her claim for loss is calculated.

Answer 30

Answer:
[D] Katya should write to Manuel outlining the basis of her claim against him, a summary of the facts and how her claim for loss is calculated.

Rationale:
[A] is incorrect. PD-Pre-Action Conduct and Protocols at C1-004 and C1-005: There is no requirement to obtain expert evidence at this stage. Permission from the court is required before expert evidence can be relied on. If it is necessary to obtain expert evidence the parties should consider using a single joint expert.
[B] is incorrect. This is inconsistent with the PD-Pre-Action Conduct and Protocols. C1-004. There are various steps which should be taken before issuing a claim even if a party is in financial difficulties.
[C] is incorrect. See explanation at [A] above. PD-Pre-Action Conduct and Protocols C1-006 further says parties may negotiate to settle a dispute or may use a form of ADR but there is no requirement that they do so.
[D] is the correct answer. See C1-004 PD Pre-Action Conduct and Protocols which sets out the steps with which the parties should comply before commencing proceedings: such steps include writing to the defendant with concise details of the claim including the basis on which the claim is made a summary of the facts what the claimant wants and how the amount is calculated.
 

Question 30

It is now 3 April 2024. Auto considers whether to accept SL’s Part 36 offer and asks for advice about the costs consequences of accepting SL’s offer.
What is the best advice to give Auto as to the costs consequences of accepting SL’s offer now?
Unless the parties agree otherwise or the court considers it unjust,
[A] Auto would receive its costs up to the date of acceptance of the offer.
[B] Auto would receive its costs up to the expiry of the relevant period and Auto would pay SL’s costs after that date.
[C] Auto would receive its costs up to the expiry of the relevant period and Auto would pay SL’s costs after that on the indemnity basis.
[D] Auto would receive its costs up to the expiry of the relevant period and the court would determine the liability for costs for the period after that.

Answer 30

Answer:
[B] Auto would receive its costs up to the expiry of the relevant period and Auto would pay SL’s costs after that date.

Rationale:
[A] is not the best answer because it is incorrect. See explanation for [B]. This does not recognise the fact that acceptance is outside the relevant period.
[B] is the best answer. This gives the client appropriate advice as to its liability. CPR 36.13(4) provides that where a Part 36 offer which relates to the whole of the claim is accepted after the expiry of the relevant period, liability for costs must be determined by the court unless the parties have agreed the costs. CPR 36.13(5) provides that in those circumstances, the court must, unless it considers it unjust to do so, order that C gets its costs up to expiry of the RP and offeree (Auto) pays offeror’s (SL’s) costs for the period from the date of expiry of the RP to date of acceptance.
[C] is not the best answer. See explanation for [B]. There is no default position that indemnity costs are awarded.
[D] is not the best answer. This option does not provide as to who would bear liability for costs and is too broad a statement. See explanation for [B]. This is correct, but not the best advice, as it fails to capture the important point that, unless the court considers it unjust, Auto will be ordered to pay SL’s costs after expiry of the RP.
 

Question 31

Manuel files a defence denying liability. Manuel claims that he gave Katya several warnings as to the colour treatment process. Manuel further states that he exactly followed the written instructions for using the dye and, if any over-treatment occurred, it was because of errors in CB’s written instructions. Katya’s solicitors are unhappy with the lack of detail in Manuel’s defence as regards the nature of the warnings he claims to have given Katya.
On 16 January 2024, in a phone call with Manuel’s solicitors, Katya’s solicitor asks for further information as to:
(a) when Manuel claims the warnings were given; and
(b) what the exact nature of the warnings was.
Manuel’s solicitors agree to provide the information within 21 days.
Four weeks have passed since the information was requested. No response has been received from Manuel’s solicitors.

What is the best advice to give Katya on the procedure she should follow to obtain the further information?
[A] Make an application to the court for an order requiring Manuel to provide the further information. Katya must serve the application notice on Manuel.
[B] Make an application to the court for an order requiring Manuel to provide the further information. As there has been no response to Katya’s request for the information, she need not serve the application notice on Manuel.
[C] Serve a written request on Manuel requiring him to provide the further information and stating a date by which the response to the written request should be served.
[D] Inform Manuel in writing that she intends to make an application for an order requiring him to provide the further information as discussed over the telephone. If Manuel fails to respond within 7 days, Katya can make the application to the court without serving the application notice on Manuel.

Answer 31

Answer:
[C] Serve a written request on Manuel requiring him to provide the further information and stating a date by which the response to the written request should be served.

Rationale:
[A] is not the best answer. Whilst this approach could be taken, it would not be the best course of action as no written request has been made for further information. It would therefore not be prudent to proceed to make an application to the Court for an order under Part 18 as this would incur unnecessary costs. 18PD1.1 and 18PD.5.
[B] is not the best answer. See 18PD.5. The application can only be made without notice if at least 14 days have passed since the request was served and the time stated in it for a response has expired.
[C] is the best answer. See 18PD1.1. As only an oral request for the further information has been made over the telephone at this stage the correct way to proceed is to make a written request in accordance with 18 PD.
[D] is not the best answer 18PD1. Whilst this could be a course of action to take it would be prudent to first make a written request before making an application to the court.
 

Question 32

If JJ’s witness statement stands as his evidence in-chief, and unless the court otherwise directs, which of the following statements is correct about the availability of JJ’s witness statement at trial to non-parties, and its use afterwards?
JJ’s witness statement
[A] will not be open to inspection during the course of the trial but, afterwards, may be used for some purpose other than the proceedings in which it is served, provided JJ consents in writing to some other use of it.
[B] will be open to inspection during the course of the trial and, afterwards, may be used for some purpose other than the proceedings in which it is served.
[C] will not be open to inspection during the course of the trial and, afterwards, may not be used for some purpose other than the proceedings in which it is served, unless JJ consents and the court so directs.
[D] will be open to inspection during the course of the trial and may be used only for the purpose of the proceedings in which it is served.

Answer 32

Answer:
[B] will be open to inspection during the course of the trial and, afterwards, may be used for some purpose other than the proceedings in which it is served.

Rationale:
[A] is not the correct answer. This suggests that the general rule is that a witness statement will not be open to inspection during the course of the trial whereas the general rule is that a witness statement will be open to inspection unless the court otherwise directs (CPR 32.13 (1)). The stem provides for the possibility that the court might otherwise direct but it is an incorrect statement to suggest that the witness statement will not be open to inspection. It is correct to say that the witness statement may be used for some other purpose other than the proceedings in which it is served but the proviso is incorrect as the witness statement will have been put in evidence at a hearing held in public CPR 32.12(2)(c) and therefore may be used regardless of JJ giving consent CPR 32.12(2)(a).
[B] is the correct answer. CPR 32.12 provides that “except as provided by this rule a witness statement may be used only for the purpose of the proceedings in which it is served and goes on to provide at CPR 32.12(2) exceptions to this where the witness gives consent; the court gives permission for some other use or the witness statement has been put in evidence at a hearing held in public (CPR 32.12(2)(c)) so if JJ gives evidence it will mean that his statement may be used for a purpose other than the purpose of the proceedings in which it is served. Further, CPR 32.13(1) provides that a witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs. In exercising its discretion, the court must be satisfied that a witness statement should not be open to inspection because of various reasons. So, unless the court exercises its discretion, the witness statement will be open to inspection during the course of the trial and afterwards may be used for some other purpose other than the proceedings in which it is served.
[C] is not the correct answer as provided for by the explanation at [A] and [B]. The use of the witness statement for other purposes would be permitted as the statement will have been put in evidence at a hearing held in public.
[D] is not the correct answer as provided for by the explanations at [A] and [B]; the first part of the answer is correct, the second part is incorrect.
 

Question 33

Katya says that, despite the expert’s purported expertise, she believes that the expert:
* lacks sufficient experience in high-profile advertising campaigns of this nature;
* has compared the AquaMarine campaign with less well-known brands and failed to take into account the amount of advertising exposure created by a campaign of this size and scope; and
* has underestimated the extent to which the advert will be broadcast during prime-time viewing slots.

Katya asks for your advice on what she should do next to challenge the report.
What is the best advice to give her in response?
[A] Katya should refuse to agree the report and should seek permission for the parties to jointly instruct a second expert who has sufficient expertise to accurately report on Katya’s projected loss of revenue.
[B] Katya should refuse to agree the report and should seek permission for the expert to be called to give oral evidence at trial so that the expert can be cross-examined.
[C] Katya should obtain evidence from her own expert and serve her witness statement to which the report may be annexed.
[D] Katya should seek permission to obtain her own expert’s report, which will enable her to decide whether or not there are aspects of the joint expert’s report which are capable of being challenged.

Answer 33

Answer:
[D] Katya should seek permission to obtain her own expert’s report, which will enable her to decide whether or not there are aspects of the joint expert’s report which are capable of being challenged.

Rationale:
[A] is not the best answer. The WB 2023 commentary at 35.7.4 gives guidance as to the approach to be adopted when a party wishes to challenge the report of a SJE and when permission might be given to a party to obtain their own expert report. Furthermore, Manuel is likely to be content with the evidence of the original SJE and will likely oppose any application to instruct a second SJE.
[B] is not the best answer as it ignores the possibility of obtaining further expert evidence on which to base a challenge. If this course of action is adopted Katya runs the risk of failing to challenge the SJE’s evidence successfully.
[C] is an incorrect answer. WB 2023 commentary at 35.4.2 first paragraph makes clear that the requirement to obtain the court’s permission to adduce expert evidence cannot be circumvented by seeking to adduce expert evidence within a witness statement.
[D] is the best answer. WB 2023 commentary at 35.7.4 makes clear that there are circumstances where the court will consider giving permission to obtain further expert evidence in the event that a party wishes to challenge the report of a SJE. This is specifically provided for in the first paragraph of the WB 2023 commentary at 35.7.4: “… whether that party should be permitted to instruct another expert with a view to their obtaining a report which will enable them to make a decision as to whether or not there were aspects of the report of the single joint expert which they might wish to challenge”. Here the sums involved are not modest. Katya’s reasons for wanting to obtain further expert evidence are not fanciful and her attempts to resolve the matter by asking questions of the SJE have been unsuccessful.

Question 34

How should Katya’s solicitors comply with the requirement to give notice to adduce JJ’s evidence as hearsay?
Katya’s solicitors should comply with the requirement to give notice by serving
[A] JJ’s witness statement on Manuel by 17 May.
[B] notice of intention to rely on JJ’s served witness statement as hearsay no later than 14 days after the date for exchange of witness statements.
[C] a notice on Manuel by 17 May which identifies the hearsay, states that the evidence is to be relied on as hearsay and gives the reasons why JJ will not be called to give oral evidence.
[D] JJ’s witness statement on Manuel by 17 May and at the same time informing Manuel that JJ will not be called to give oral evidence, and the reason why.

Answer 34

Answer:
[D] JJ’s witness statement on Manuel by 17 May and at the same time informing Manuel that JJ will not be called to give oral evidence, and the reason why.

Rationale:
[A] is incorrect as this notice requirement applies where hearsay is given by a witness who is giving oral evidence (and contained in a witness statement).
[B] is incorrect – see explanation for [D].
[C] is incorrect - this notice requirement applies where hearsay evidence is not contained in a witness statement.
[D] is correct - CPR 33.2 (2) applies as evidence is contained in a witness statement and JJ will not be called to give oral evidence.

Question 34

Katya’s claim proceeds to trial, at which the Judge finds that Manuel was negligent in failing to warn Katya about any risks surrounding the dyeing process and in over-treating her hair by not following the instructions for application of the dye. Katya obtains judgment in the sum of £280,000.
Following costs submissions, the Judge finds that, at the pre-action stage, Manuel had invited Katya to engage in mediation, to which Katya failed to respond. Had Katya responded, she would have had reasonable grounds to refuse Manuel’s invitation as mediation was unlikely to have succeeded and there was some evidence that Manuel was intending that it be used as a delaying tactic. Nonetheless, the Judge noted that some engagement with alternative dispute resolution (ADR) might have assisted in narrowing issues and saving some costs.

In light of the Judge’s findings, what is the best advice to give Katya as to the effect of the costs order which the Judge is likely to make, and why?
[A] That Katya pay a proportion of Manuel’s costs as this is the automatic costs consequence for failing to respond to an invitation to engage in ADR.
[B] That some of Katya’s costs are disallowed and therefore Manuel only pays a proportion of her costs as her conduct in failing to respond to the invitation to engage in mediation was unreasonable.
[C] That Katya pay all of Manuel’s costs as her conduct in failing to respond to the invitation to engage with mediation was a serious and flagrant failure to engage with ADR.
[D] That Manuel pays all of Katya’s costs as none of her conduct was unreasonable and she is the successful party.

Answer 34

Answer:
[B] That some of Katya’s costs are disallowed and therefore Manuel only pays a proportion of her costs as her conduct in failing to respond to the invitation to engage in mediation was unreasonable.

Rationale:
[A] Unlikely as failure not serious and flagrant and wrong to say any costs consequence automatic
[B] Here ADR related conduct is unreasonable and there appears to have potentially been some costs wasted as a result. This option is the most likely and proportionate response. See specifically the White Book 2022 commentary at 44.2.24 (third paragraph) and case of PGF II SA v OMFS [2013] EWCA Civ 1288. Failure to respond to a request is of itself unreasonable regardless of whether the reasons might have been justified/reasonable. Failure to respond does not result in an automatic costs sanction but is an aspect of conduct in a wider balancing exercise. A proper response may range from disallowing the whole or moderate part of successful party’s costs. A court could go further and order the successful party to pay some or all of unsuccessful party’s costs but that sanction is draconian and should be reserved for the most serious and flagrant failures to engage in ADR.
[C] Possible but unlikely – for above reasons and would entirely reverse general rule on successful party recovery
[D] Possible as follows general rule but unlikely as failure to respond is unreasonable conduct and case law suggests a costs sanction of some kind is a proper response. Here some costs could potentially have been saved.
See more generally White Book 2023 commentary at 44.2.24, CPR 44.2(2), (4), (5) and (6)