Pre-action consideration and conduct MCQs Flashcards
Instructing Solicitors have called you to ask for advice whilst drafting a Particulars of Claim. The claim, brought by Mr and Mrs Taylor against their wedding florists Beautiful Bouquets Ltd, is for breach of contract. The claim is for £2,000, which is the amount the Taylors paid for the flowers; plus they wish to claim interest.
They claim that the table arrangements for the reception were not delivered at all. Additionally, the arrangements of flowers at the church were of the wrong type and should have been lilac and cream roses and not the red and white roses which were delivered.
Although the original written contract dated 22nd February 2021 provided for red and white rose bouquets, during a later telephone conversation on 14th May 2021 Mrs Taylor made clear to Beautiful Bouquets that the colour scheme had changed and she agreed to pay £300 extra for lilac and cream roses. The contract provided for interest to be paid to Beautiful Bouquets at a rate of 8% p.a. in the case of late payment for the flowers.
Which ONE of the following is the BEST ADVICE to give to your solicitors to assist them in drafting the Particulars of Claim?
In addition to attaching to and serving the written contract with the Particulars of Claim, the Particulars should set out the terms of the later oral agreement to include the contractual words, when and where they were spoken and by and to whom. The Particulars of Claim should include a claim for interest stated to be pursuant to S.69 County Courts Act 1984. The percentage rate, the dates from which and to which interest is claimed and calculated prior to issue of the claim form, the amount claimed to that date and the daily rate interest accrues after that date must also be included in the Particulars of Claim.
The written contract must be attached to and served with the Particulars of Claim together with a witness statement setting out details of the telephone conversation on 14th May 2021. Interest should be claimed pursuant to the contract setting out the rate of 8%, the date from which it is claimed and calculated to, the amount claimed to that date and the daily rate interest accrues after that date.
Interest on damages can be claimed under S.69 County Courts Act 1984 and such a claim should be stated in the Particulars of Claim. The written contract must be attached to and served with the Particulars of Claim.
In addition to attaching to and serving the written contract with the Particulars of Claim, the Particulars should set out the terms of the later oral agreement to include the contractual words, when and where they were spoken and by and to whom. The Particulars of Claim should include a claim for interest stated to be pursuant to S.69 County Court Act 1984 to be assessed by the court as this is a claim for an unspecified sum of money.
In addition to attaching to and serving the written contract with the Particulars of Claim, the Particulars should set out the terms of the later oral agreement to include the contractual words, when and where they were spoken and by and to whom. The Particulars of Claim should include a claim for interest stated to be pursuant to S.69 County Courts Act 1984. The percentage rate, the dates from which and to which interest is claimed and calculated prior to issue of the claim form, the amount claimed to that date and the daily rate interest accrues after that date must also be included in the Particulars of Claim.
This answer satisfies all the relevant requirements: attaching/serving the written contract (para 7.3 of Practice Direction 16); giving the required details of the oral agreement (para 7.4 of Practice Direction 16); and setting out full particulars of interest (CPR rule 16.4(2)).
As this is a claim for a specified amount of money, CPR rule 16.4(2)(b) applies. Therefore, a generalised interest claim is not sufficient.
Mr and Mrs Taylor cannot claim interest under the contract, as the contract only provides for interest to be paid to Beautiful Bouquets in case of late payment for the flowers. Mr and Mrs Taylor should therefore claim statutory interest.
You are acting for David Jones, aged 16, who is the intended claimant in a claim for personal injuries. The decision has been taken to issue proceedings against Jason Christie, the driver of a milk tanker, and his employer, Davenshire Dairies plc, for going through a red light and causing the collision with the car David was travelling in, being driven by his father, Gareth Jones. David’s mother, Sian Jones, was a passenger in the car and suffered whiplash and minor facial injuries.
During compliance with the relevant protocol, the prospective defendants indicated that they would be blaming Gareth Jones for the collision as they allege it is he who drove through the red light at the crossing. You have been asked to advise as to who should be appointed to represent David Jones as a litigation friend. Apart from his parents, David does not have any other person who is willing to act as his litigation friend.
Which ONE of the following statements sets out the BEST ADVICE to provide on this set of facts?
David should make an application to the court requesting that he should be able to conduct proceedings without a litigation friend. This would enable him to accept any settlement offered by Davenshire Dairies without court approval.
As both parents were witnesses to the accident and are likely to be giving evidence, they have an adverse interest and may not be David’s litigation friend.
David’s mother, Sian Jones, can act as the litigation friend and can do so without a court order as she satisfies the conditions for the role.
David’s father, Gareth Jones, can act as the litigation friend and can do so without a court order because he satisfies the conditions for the role.
David’s mother, Sian Jones, can act as the litigation friend and can do so without a court order as she satisfies the conditions for the role.
This is the best advice to give. The mother does not appear to have any interest adverse to David. She has her own claim for personal injuries but that does not give her an adverse interest under CPR rule 21.4(3)(b). Nor does being a witness give her an adverse interest in this factual scenario.
The father is not a suitable litigation friend. David may have a claim against his father if it transpires that the father was negligent in respect of the accident. Hence, the father does have a potential adverse interest.
Although it is possible to apply to court to act without a litigation friend, this is inadvisable in this case because: (1) David is only 16; and (2) his mother is willing and able to act as his litigation friend. In any event, even if the claim is brought by David without a litigation friend, the court would still have to approve any settlement reched whilst he was still a child (i.e. under the age of 18): CPR rule 21.10(1).
Beneficiaries to a trust are in dispute with the trustees as to the extent of the trustees’ power of investment of trust funds under a provision in the trust deed. The trustees issue and serve proceedings together with written evidence using the Part 8 procedure, requesting the court to rule on the correct interpretation of the clause in question.
However, the solicitor for the beneficiaries is concerned that proper resolution as to the interpretation of the clause will require not only written but quite possibly oral evidence from and cross examination of persons who were involved in drafting the trust deed and possibly others who were privy to the pre-drafting discussions regarding the objectives of the trust.
The solicitor for the beneficiaries therefore asks your advice on how to proceed following the service of the Part 8 claim form.
Which ONE of the following is the BEST ADVICE to provide to the solicitor for the beneficiaries?
The Defendants should serve an acknowledgement of service stating that they contest the claim and wait to see how the claim progresses before dealing with the matter of whether written and oral evidence from witnesses may be necessary.
The Defendants should serve a full defence in response to the Part 8 claim, within 14 days of service of the claim form, setting out their response to the claim with reference to the evidence upon which they rely.
The Defendants should file any witness statements on which they wish to rely along with an acknowledgment of service stating their concerns that there may be a substantial dispute of fact, with reasons, and objecting to the use of the Part 8 procedure.
The Defendants should serve an acknowledgement of service and witness evidence and ask the court to give case management directions to permit witnesses to attend and give oral evidence.
The Defendants should file any witness statements on which they wish to rely along with an acknowledgment of service stating their concerns that there may be a substantial dispute of fact, with reasons, and objecting to the use of the Part 8 procedure.
This is the best advice to give. If the solicitor considers oral evidence from witnesses will be necessary, then there is likely to be a substantial dispute of fact, thereby engaging CPR rule 8.8(1)(a). In the light of the solicitor’s concerns, the court will consider whether Part 8 is the correct procedure and will give appropriate directions. Although the court can order oral evidence on Part 8 (under CPR rules 8.6(2) and 8.6(3)), a hearing with oral evidence is only suitable on Part 8 to resolve a limited factual dispute. By contrast, the question implies that there is likely to be a substantial dispute of fact.
There is no defence stage under Part 8. Part 15 of the CPR does not apply under Part 8. Please see CPR rule 8.9(a)(ii).
A defendant who wishes to rely on witness evidence must file it when he files his acknowledgment of service: CPR rule 8.5(3).
