SQE Dispute Resolution Flashcards
A publisher is considering bringing a claim against a company which owns a chain of bookshops. The parties agreed in writing that the company would purchase books at a reduced price from the publisher, but in return would only stock books supplied exclusively by the publisher in its bookshops. The publisher has obtained evidence that the bookshops are stocking books published by its competitors. This is causing the publisher loss.
What is the purpose of damages likely to be in this case?
A. To put the publisher in the position they would have been in had the negligent act not occurred.
Option b: To put the publisher in the position they would have been in had the nuisance not occurred.
Option c: To put the publisher in the position they would have been in had the parties been acting in the course of business.
Option d: To put the publisher in the position they would have been in had the contract been properly performed.
Option e: To put the publisher back to the position they were in before the contract was entered into.
Option D is correct. The cause of action is likely to be breach of contract, given the written agreement between the parties and the alleged breach of its terms causing loss. The purpose of damages in these cases is to put the claimant (here, the publisher) in the position they would have been in had the contract been properly performed.
Option A is wrong. This is the purpose of damages in negligence cases, but the cause of action is more likely to be breach of contract on these facts.
Option B is wrong. This is the purpose of damages in nuisance cases, but the cause of action is more likely to be breach of contract on these facts.
Option C is wrong. The question of whether the parties were acting in the course of business can be relevant to implied contractual terms but is not relevant to the purpose of damages in a breach of contract claim.
Option E is wrong. This is the purpose of damages in misrepresentation cases, but the cause of action is more likely to be breach of contract on these facts.
A company is owed a significant amount of money by a partnership in relation to an alleged failure to comply with a contract to supply services. The partners are adamant they do not owe the money, arguing that the company is in breach of the contract concerning the implied term of reasonable care and skill.
The contract has no dispute resolutions provisions.
Negotiations and mediation fail to resolve the dispute.
What advice should the solicitor give to the company in these circumstances?
A. As mediation has failed, the company must start arbitration proceedings.
Option b: There is no alternative but to start court proceedings immediately.
Option c: Other forms of ADR may be considered.
Option d: As mediation has failed, there is no need to consider other forms of ADR.
Option e: As the court will stay any court proceedings that are started, the company must propose another form of ADR to the partnership.
Option C is the best advice. Other forms of ADR may be considered. Just because negotiation and mediation have failed does not mean that there is no need to consider other forms of ADR (making option D wrong).
Option A is wrong. There is no contractual obligation requiring the company to start arbitration proceedings as the contract has no dispute resolution provision. Arbitration would be another form of ADR to consider as per option C.
As detailed above, option B is wrong as there are alternatives to consider instead of starting court proceedings immediately.
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Option E is wrong. Whether or not the court stay the proceedings for ADR depends on the application of Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 where it was held that a court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
A company is owed a significant amount of money by a partnership in relation to an alleged failure to comply with a contract to supply goods. The partners are adamant they do not owe the money, arguing that the company is in breach of contract of an implied term as to quality. Negotiations to resolve the matter have failed, as has mediation, and the company has not received the outstanding monies.
What advice should the solicitor give to the company before issuing proceedings?
A. As it has not been possible to resolve the dispute, there is no alternative but to resort to litigation and issue proceedings.
Option b: Civil litigation is governed by the Civil Process Rules, which dictate the procedure that must be adopted when pursuing a claim through the courts.
Option c: The only advantage of litigation is that a final decision will be made by the judge but the disadvantage is the increased cost.
Option d: Once a judgment has been given, the parties must write to the High Court for permission to enforce the judgment.
Option e: Once a claim has entered the litigation process, it must follow all five stages up to and beyond the trial.
Option A sets out the best advice as litigation is the only means of resolving the dispute in the absence of agreement. Option B is wrong as the procedure is governed by the Civil Procedure Rules and not the Civil Process Rules. Option C is not the best advice as there are other advantages to litigation over ADR including the availability of full disclosure of documents. Option D is wrong as the successful party does not have to write to the High Court for permission to enforce the judgment – this is the procedure required to enforce a decision in arbitration. Option E is wrong as most claims are settled well before a trial.
A client runs a business providing educational software to colleges of further education to improve their assessment processes. However, complaints have been received from one college that the assessments are not being correctly recorded and the principal has indicated they will not be renewing the contract. It becomes apparent to the client there may be errors in the system. The client has a number of other colleges that are considering using the system.
Which of the following statements describes the client’s best option for resolving the matter and why?
A. Mediation because it is a cheaper and faster option than litigation.
Option b: Mediation because it takes place in private and will ensure that other colleges do not become aware of the dispute.
Option c: Mediation because it is more likely that the parties will preserve their business relationship.
Option d: Arbitration because the decision is binding on both parties.
Option e: Arbitration because an expert on information technology can determine the dispute.
Option B is correct as the client has a number of other colleges that are considering using the system and it is unlikely they will do so if they become aware of the problems with the software. Although speed and cost are advantages of mediation over litigation, they are not the most important issues here, so option A is not the best answer. Option C is wrong because the college are not looking to renew the contract, so maintaining the business relationship is immaterial in this instance. The statement in D is correct but the binding nature of any decision is both an advantage and a disadvantage. Option E is also not the best answer for the reasons already stated, although it is an advantage of arbitration as a means of resolving the dispute.
A company client seeks advice in relation to a contract for the sale of curtains to a wedding venue. The customer strongly disputes payment on the basis that the curtains supplied did not match the fabric of the sample provided. The client instructs their solicitor to issue proceedings against the customer.
Which of the following best describes the approach that should be taken by the client.
A. The client may issue proceedings against the customer immediately with confidence that sanctions will not be imposed.
Option b: The client may choose whether to follow a pre-action protocol or whether to rely upon the Practice Direction for Pre-Action Conduct and Protocols.
Option c: As the only purpose of the pre-action protocols is to assist the parties in settling cases without litigation, the client need not comply as agreement is unlikely.
Option d: Unless the limitation period is about to expire, the client should write to the customer with concise details of the claim and disclose key documents.
Option e: When trying to resolve matters, all possible steps should be taken by the client to effect this but only proportionate costs need be incurred.
Option D is correct. According to the Practice Direction on Pre-Action Conduct and Protocols, these are the steps with which the claimant should usually comply before issuing a claim. Option A is wrong as there are a number of sanctions that the court could impose if a party fails to comply with the practice direction or a relevant pre-action protocol. These include penalties relating to costs and interest.
Option B is wrong as the client cannot choose which route to take. The Practice Direction only applies if there is no specific protocol in relation to the particular dispute. Option C is wrong as assisting the parties in settling cases without litigation is not the ‘only’ purpose of the protocols and the parties should comply even if agreement seems unlikely.
Option E is also wrong as the client is required to take ‘reasonable and proportionate steps’ to try and resolve the matter, not ‘all’ steps, although it is correct that the costs incurred in doing so should be proportionate.
A company manufactures chocolate bars. Last year, the company entered into a contract with the defendant for the purchase of 10,000kg of cacao beans. When the cacao beans were delivered to the company, they were found to be mouldy.
Which of the following best describes the company’s cause of action?
A. Breach of contract.
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Option b: The tort of negligence.
Option c: Product liability.
Option d: That the cacao beans were not delivered exercising reasonable care and skill.
Option e: That the cacao beans are mouldy.
Option A is the best answer. The company entered into a contract with the defendant for the purchase of 10,000kg of cacao beans. If there was no express term as to the standard of quality the cacao beans should have met when delivered, the implied term that the cacao beans should have been of satisfactory quality will apply. As they were found to be mouldy, that term has been breached.
Options B and C are not the best answer. The claim will be made in contract, not tort.
Option D is wrong. The claim concerns the sale of the cacao beans and the condition that they should have been in on delivery.
Option E is not the best answer. That the cacao beans are mouldy is the factual basis for saying that the cacao beans should have been of satisfactory quality and therefore that the contract has been breached.
The parties to a complex, high value commercial claim for damages in the High Court are considering whether or not to stay the proceedings and take part in mediation.
Which of the following best describe the features of mediation which the parties should take into account?
A. The mediation may take many months to arrange. It is held in public. Any agreement reached must be limited to an award of damages.
Option b: All discussions which take place during mediation are confidential. It is an informal, relatively quick and cheap procedure. The parties must return to court if settlement is reached to advise the court of the settlement terms and obtain the court’s approval.
Option c: The mediation may take many months to arrange. All discussions which take place during mediation are confidential. It is an informal, relatively cheap procedure. Creative commercial solutions may form part as part of any settlement reached but these cannot be included in any court order.
Option d: The mediation can be arranged quickly. All discussions which take place during mediation are confidential. It is an informal, relatively cheap procedure compared to arbitration or litigation. It may help to preserve the business relationship between the parties. Creative commercial solutions may form part of any settlement reached and these can be included in a court order made by consent to end the proceedings.
Option e: The mediation can be arranged quickly. All discussions which take place during mediation are confidential. It is an informal, relatively cheap procedure compared to arbitration or litigation. It may help to preserve the business relationship between the parties. Any agreement reached must be limited to an award of damages or any other provision that the court has power to order.
Option D is the best answer as it accurately describes the characteristics of mediation.
Option A not the best answer. The mediation may take as little as a few days or weeks to arrange. It is held in private. Creative commercial solutions beyond just the award of damages. may form part as part of any settlement reached. See the feedback to the correct option D.
Option B is not the best answer. It is correct that all discussions which take place during mediation are confidential and that it is an informal, relatively quick and cheap procedure. However, there is no obligation on the parties return to court if settlement is reached to advise the court of the settlement terms and obtain the court’s approval. By way of information, the court’s approval is only required to terms concerning children or a protected party (see Unit 2). See the feedback to the correct option D.
Option C not the best answer. The mediation may take as little as a few days or weeks to arrange. It is correct that all discussions which take place during mediation are confidential and that it is an informal, relatively cheap procedure. It is correct that creative commercial solutions may form part as part of any settlement reached. However, such terms can be included in a court order made by consent to end the proceedings (known as a Tomlin Order – see Unit 2). See the feedback to the correct option D.
Option E is not the best answer. It is correct that the mediation can be arranged quickly. It is also correct that all discussions which take place during mediation are confidential and that it is an informal, relatively cheap procedure compared to arbitration or litigation. It is correct that mediation that may help to preserve the business relationship between the parties. However, any agreement reached does not have to be limited to an award of damages or any other provision that the court has power to order. Creative commercial solutions may form part of any settlement reached and these can be included in a court order made by consent to end the proceedings (known as a Tomlin Order – see Unit 2). See the feedback to the correct option D.
A client runs a publishing business best known for releasing high-profile and celebrity autobiographies. However, the most recent high-profile release received numerous complaints due to the quality of the printing which included missing pages and discoloured photographs. The client is furious with the printers and is very embarrassed. They advise that they will not be using their services again. The client is keen to preserve their excellent reputation within the industry.
Which of the following statements describes the client’s best option for resolving the matter?
A. Mediation, because it is a cheaper and faster option than litigation.
Option b: Mediation, because it is more likely that the parties will preserve their business relationship.
Option c: Arbitration, because an expert on printing and book binding can determine the dispute.
Option d: Litigation, because if successful it will provide public vindication.
Option e: Mediation, because it takes place in private.
Option D is the best answer. The client is keen to maintain their public reputation within the industry. Although speed and cost are advantages of mediation over litigation, they are not the most important priorities identified by the client, so option A is not the best answer.
Option B is wrong because the client is not looking to use the printers again, so maintaining the business relationship is not a factor in this case.
Option C is also not the best answer for the reasons already stated (although the appointment of an expert as an arbitrator is an advantage of arbitration as a means of resolving the dispute). Arbitration proceedings are conducted in private, and the arbitral award is usually confidential to the parties.
Option E is also not the best answer given the reasons above.
On 31 January [4 years ago], the claimant was knocked down whilst crossing the road when he was hit by a speeding vehicle. The driver did not stop after the accident and the claimant cannot remember anything about the vehicle which hit him.
The claimant was unsure whether he had a valid claim for damages and consulted a solicitor about his accident on 7 February [3 years ago]. The solicitor told him the same day that he had a claim against the driver of the vehicle.
On 30 July [3 years ago], a woman informed the claimant’s solicitor that she had witnessed the accident and identified the vehicle as one owned by a local supermarket.
A claim form and particulars of claim were issued and served on the supermarket on the 20 January [this year]. The supermarket is defending the claim on the basis that the limitation period for bringing the claim has expired. What advice should be given to the claimant regarding the limitation period?
A. The limitation period is three years from the date of the accident and so the limitation period expired last year on 31 January.
Option b: The limitation period is six years from the date of the accident and so the claim form was issued before the limitation expired.
Option c: The limitation period began to run when the claimant discovered the identity of the defendant on 30 July [3 years ago] and so the claim form was issued on 20 January [this year] before the limitation expired on 30 July [this year].
Option d: The limitation period is three years from the date the claimant received legal advice that he had a claim against an unknown driver and so the limitation period expired on 7 February [this year] after the claim form was issued on 20 January [this year].
Option e: The limitation period is six years from the date the claimant received legal advice that he had a claim against an unknown driver and so the claim form was issued before the limitation expired.
Option C is correct, meaning the other options are wrong.
Where in any action, whether for negligence, nuisance or breach of statutory duty, the claimant claims damages for personal injuries, the basic period of limitation is only three years. However, this period runs from the date on which the cause of action accrued; or the date, if later, of the claimant’s knowledge. The expression ‘date of knowledge’ means the first date when the claimant knew, or might reasonably be expected to have known, certain specific facts. These include the seriousness of his injury, its cause, and the identity of the defendant. So, whilst the cause of action arises when the accident happens on 31 January [4 years ago], it is not until 30 July [3 years ago] that the claimant has sufficient knowledge to bring the personal injury claim when the owner of the vehicle that knocked him over was identified. The limitation period therefore expired on 30 July [this year] after the claim form was issued on 20 January [this year].
Last year, a supermarket rejected a delivery of vegetables from its supplier, claiming that most of the goods were damaged. Whilst the supplier accepted that a small percentage of the vegetables were unsellable, it still demanded payment for the remaining goods in full, namely £155,000.
The parties attempted to resolve their dispute at a mediation but that failed. The supermarket claims that the mediation was unsuccessful because of the supplier’s antagonistic behaviour towards the mediator. The supplier denies this and says that the mediation failed due to the supermarket’s inflexible approach.
Proceedings were started by the supplier. The supermarket defended the claim and counterclaimed for damages. At trial, the judge determined that the supplier was in breach of contract and that it should pay damages to the supermarket.
Which of the following best describes how the trial judge should approach the issue of costs?
A. The trial judge must order that the supplier, as the unsuccessful party, should pay the supermarket’s costs of successfully defending the claim and making its counterclaim.
Option b: The supermarket can be ordered to pay or contribute towards the supplier’s costs if the supplier can establish, by way of admissible evidence, that the supermarket’s inflexible approach to the mediation caused it to fail and that otherwise the mediation would have had a reasonable prospect of succeeding.
Option c: The supermarket can compel the mediator to give evidence of the supplier’s antagonistic behaviour during the mediation. If the trial judge accepts that evidence, the supplier will be ordered to pay compensation to the mediator, as well as the full costs of the mediation.
Option d: Evidence of what happened during the mediation is inadmissible. So, even if both parties agree to give that evidence, the trial judge should refuse to hear it.
Option e: Evidence of what happened during the mediation is irrelevant to the issue of costs. So, even if both parties agree to give that evidence, the trial judge should refuse to hear it.
Option B is the best answer. One party may be ordered to pay or contribute towards the other party’s costs if it can be established by way of admissible evidence that its conduct caused mediation to fail where otherwise the mediation would have had a reasonable prospect of succeeding.
Option A is wrong. The award of costs is discretionary. By way of information, CPR, r 44.2(1)(a) provides that the court has discretion as to whether costs are payable by one party to another. Sub-paragraph (2) then states that if the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order. See the feedback to the correct option B.
Option C is wrong. By way of information, a party to a mediation cannot compel the mediator to give evidence in subsequent proceedings. Moreover, the court has no power to order a party in these circumstances to pay compensation to the mediator, nor require one party to pay the full costs of the mediation. See the feedback to the correct option B.
Option D is wrong. Evidence of what happened during the mediation is admissible where both parties agree to waive confidentiality. So, if both parties agree to give that evidence, the trial judge should hear it. See the feedback to the correct option B.
Option E is wrong. Evidence of what happened during the mediation is relevant in these circumstances. Where both parties agree to waive confidentiality and give that evidence, the trial judge should hear it. See the feedback to the correct option B.
A claimant instructs a solicitor in respect of a complex breach of contract claim. The claimant’s solicitor writes to the defendant with concise details of the claim and the defendant’s solicitor responds two months later. The defendant denies the claimant’s allegations with reasons and details a counterclaim. The claimant’s solicitor writes to the defendant again and suggests a joint settlement meeting, however the defendant turns this down and suggests that, on reflection, mediation may be more appropriate.
Has the defendant complied with the Practice Direction on Pre-Action Conduct and Protocols (PDPAC)?
A. Yes, because the defendant has responded within six months of receiving details of the claim.
Option b: Yes, because the defendant has responded within three months of receiving details of the claim.
Option c: No, because the defendant has refused to attend a joint settlement meeting.
Option d: No, because the defendant has not responded within 14 days of receiving details of the claim.
Option e: No, because the defendant has not taken all steps possible to try to resolve the dispute.
Option B is correct because under the PDPAC the defendant must provide a response within a reasonable time. For complex cases the response should be provided within three months maximum. On the facts, the claim is complex and the defendant has responded within two months, so they have complied with the PDPAC.
Option A is wrong because the defendant has up to three months to respond once they receive details of the claim, as explained above.
Option C is wrong because the defendant is not obliged to engage with any alternative dispute resolution (ADR) and negotiation that is suggested, however they must give it consideration. Here, the defendant has reflected on the suggestion and suggested mediation instead.
Option D is wrong because this is a complex claim; in a straightforward claim a response should be provided within 14 days, however in this case it would be reasonable for the defendant to respond within three months.
Option E is wrong because parties are expected to take only reasonable and proportionate steps to try to resolve the matter, rather than being expected to take all steps possible.
In a contractual dispute between a company and a firm, liability is not admitted. The firm writes to the company to request that the parties enter mediation.
The company asks their solicitor if ignoring the mediation request could affect their prospects of winning should the claim proceed to trial.
What advice should the solicitor provide to the company?
A. The company’s prospects of winning would not be affected because the trial judge must not be made aware of any failure to engage with ADR until the issues of liability and the award of any damages have been dealt with.
Option b: The company’s prospects of winning could be affected because either party may make the trial judge aware of failure to engage with ADR at the start of the trial.
Option c: The company’s prospects of winning could be affected because the trial judge must take failure to engage with ADR into account when ruling on liability.
Option d: The company’s prospects of winning would not be affected because the trial judge must never be made aware of failure to engage with ADR, even when dealing with costs.
Option e: The claimant’s prospects of winning could be affected because failure to engage with ADR is considered when the trial judge decides on the amount of any damages to award.
Option A is correct because the trial judge will not be made aware of any failure to engage with ADR until after the judge has dealt with issues of liability and damages. That makes options B, C and E wrong.
Option D is wrong because although the trial judge must not be made aware of a failure to engage with ADR until after they have dealt with liability and damages (the correct option A), they can be made aware when dealing with costs. Failure to engage with ADR may impact a subsequent order for costs.
A claimant commences proceedings against a defendant. On their directions questionnaire both parties request a stay for a period of one month whilst they enter into mediation. The court agrees and makes an order accordingly. One mediation meeting takes place, but there are delays and the parties wish to extend the stay by a period of one month.
Which of the following statements best describes what the court will do?
A. The court may extend the stay but only for one month more.
Option b: The court may extend the stay for such specified period as it thinks fit.
Option c: The court must extend the stay for such specified period as it thinks fit.
Option d: The court may not extend the stay for any specified period.
Option e: The court must hold a hearing to ascertain why the initial stay was inadequate.
Option B is correct because there is no fetter on the court’s ability to grant or extend a stay in the proceedings for the purpose of settlement discussions. Provided both parties wish to continue to attempt to resolve the matter through mediation the court would be very unlikely to try to get them back into litigation. By way of information see CPR rules 3.1(2)(f) and 26.5(4)).
Option A is wrong because this suggests a fetter on the court’s ability to grant a stay.
Option C is wrong because the court has this power at its discretion. The language in CPR 3.1(2)(f) and 26.5(4) is permissive, not mandatory.
Option D is wrong because this is the opposite description to the court’s powers to grant or extend a stay pursuant to CPR 3.1(2)(f) and 26.5(4).
Option E is wrong because whilst the court has the power to require the parties to explain their position, it is unlikely to do so and does not have to do so.
A solicitor was instructed on 30 January by a client to collect a debt. The debt has been outstanding for some time because the client had forgotten to chase the debtor for payment. The limitation period for the debt expires on 4 February the same year.
What would be the best course of action for the solicitor to take on behalf of the man at this time?
A. Write to the debtor setting out the nature of the proposed claim and await a response.
Option b: Write to the debtor asking that they agree to take no issue in relation to limitation until the steps required by the relevant pre-action protocol have taken place.
Option c: Write to the debtor proposing a form of alternative dispute resolution that might settle the dispute without commencing proceedings.
Option d: Issue proceedings and serve them immediately on the debtor.
Option e: Issue proceedings and then ask the debtor to agree to apply to the court to stay the proceedings.
Option E is the best answer. By way of information, paragraph 17 of the Practice Direction on Pre-Action Conduct and Protocols states, “This Practice Direction and the pre-action protocols do not alter the statutory time limits for starting court proceedings. If a claim is issued after the relevant limitation period has expired, the defendant will be entitled to use that as a defence to the claim. If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.” This is the best step the solicitor can take next to protect the client’s cause of action and so the solicitor is acting in the client’s best interests.
Option A is not the best answer. Writing to the defendant setting out the nature of the proposed claim and waiting for a response will see the limitation period expire on 4 February. The defendant will then be entitled to use that as a defence to the claim. See the feedback to the correct option E.
Option B is not the best answer. Writing to the defendant asking that they agree to take no issue in relation to limitation until the pre-action steps required by the PD have taken place will see the limitation period expire on 4 February. The defendant will then be entitled to use that as a defence to the claim. See the feedback to the correct option E.
Option C is not the best answer. Writing to the defendant proposing a form of alternative dispute resolution that might settle the dispute without commencing proceedings will see the limitation period expire on 4 February. The defendant will then be entitled to use that as a defence to the claim. See the feedback to the correct option E.
Option D is not the best answer. As per the feedback to option C, it is correct that proceedings should be issued but it is unnecessary to incur the expense of serving the proceedings. The claimant should next write to the defendant seeking agreement to stay the proceedings in order for the parties to follow the procedures in the PD.
A woman is considering taking legal action against one of her neighbours. The neighbour has begun to use part of their garage as a micro-brewery and their activities are generating noxious smells that are making the woman unwell. The neighbour has refused to stop and told the woman that she intends to expand the brewery to the entire garage.
Should the woman be advised to resolve the dispute by mediation?
A. Yes, because litigation is considered the last resort.
Option b: No, because arbitration would be more appropriate than mediation in this case.
Option c: Yes, because the involvement of an independent third party may help the parties to resolve a dispute.
Option d: Yes, because the decision of a mediator would be binding on the parties.
Option e: No because the woman requires an injunction.
Option E is correct. Mediation would not be the best next step before involving the court as the woman needs an injunction to stop the nuisance that is making her unwell. On the facts, “The neighbour has refused to stop and told the woman that she intends to expand the brewery to the entire garage.” However, mediation may be appropriate once any injunction has been granted.
Option A is wrong. Whilst it is correct that litigation is considered the last resort, mediation would not be appropriate as an injunction is required.
Option B is wrong because the woman needs an injunction and that is not an available remedy in arbitration proceedings.
Option C is wrong. Whilst it is correct that the involvement of an independent third party (as in mediation) may help parties to resolve a dispute, mediation is not appropriate on the facts as an injunction is required.
Option D is wrong. Mediation is not appropriate on the facts as an injunction is required. Note that whilst a mediator will aim to help the parties reach a mutually agreed solution a mediator cannot impose a solution via a binding decision.
A kitchen company is considering issuing proceedings against an oven manufacturer. The company claims that they entered a written contract with the manufacturer to pay £10,000 for 20 ovens to be used in its showrooms. The company paid the purchase price but the manufacturer failed to deliver the ovens. The company seeks repayment of the purchase price, and compensation for the loss of profits it experienced when its showrooms could not open. The company estimates its loss of profits to be £30,000.
Would a claim of this nature be treated as unspecified?
A. No, because the purchase price repayment is a specified sum so the entire claim will be treated as specified.
Option b: Yes, because the court will need to investigate to determine the amount payable for the purchase price repayment and loss of profits.
Option c: No, because the claimant has estimated its loss of profits so the court will not need to investigate to determine the amount payable.
Option d: No, because the purchase price repayment and the loss of profits are fixed amounts of money so the claim will be treated as specified.
Option e: Yes, because the claim is a mixture of specified and unspecified amounts so the entire claim will be treated as unspecified.
Option E is correct. The repayment of the purchase price is a specified amount, but the loss of profits is an unspecified amount. Where a claim is a mixture of specified and unspecified amounts, the entire claim will be treated as unspecified.
Option A is wrong. Although the purchase price repayment is a specified sum, the claim will be treated as unspecified for the reasons given above.
Option B is wrong. Although it is correct that the claim will be treated as unspecified, the court will not need to investigate to determine the amount payable for the purchase price repayment as this is a fixed amount due under an express contractual term.
Option C is wrong. Even though the claimant has put forward some figures in respect of the loss of profits, the court will still need to conduct an investigation to determine the amount of money payable as the loss of profits is not fixed.
Option D is wrong. The purchase price repayment is a specified amount, but the loss of profits is an unspecified amount for the reasons given above.
A claimant manufactures men’s shirts. On 6 February 2020, the claimant entered into a contract with a defendant for the purchase of 50 rolls of material. The material was delivered to the claimant by the defendant on 8 April 2020. When these rolls were inspected by the claimant on 19 April 2020, nearly all of them were found to be faulty.
What is the latest date the claimant must issue proceedings against the defendant for limitation purposes?
A. 19 April 2026.
Option b: 8 April 2026.
Option c: 19 April 2023.
Option d: 8 April 2023.
Option e: 6 February 2026.
Option B is correct. As the client’s claim is for breach of contract, under the Limitation Act 1980 it will have 6 years from the date of breach within which to bring its claim. In a contract for the sale of goods, the date of breach will usually be the date of delivery (being, logically, the first point at which the buyer has defective goods in his hands, contrary to the seller’s contractual obligations).
Option A is wrong because in a breach of contract claim the cause of action accrues at the date of the breach of contract, not when that breach is discovered.
Options C, D and E are wrong as under the Limitation Act 1980 the limitation period for a breach of contract claim is 6 years from the date of the breach.
A company which manufactures hybrid electric wheelchairs has recently suffered huge financial and reputational damage because a supplier provided wheelchair parts which proved to be defective. The company asks its solicitor to issue court proceedings to recover damages for breach of contract. The solicitor correctly advises that the Practice Direction on Pre-action Conduct and Protocols (‘PDPAC’) applies to this dispute. The solicitor also advises that the company is not allowed to commence court proceedings until it has complied with the PDPAC.
Is the solicitor’s advice that the company is not allowed to commence court proceedings until it has complied with the PDPAC correct?
A. Yes, because court proceedings cannot be commenced without providing evidence of compliance with the PDPAC.
Option b: No, because it is possible to commence court proceedings without complying with the PDPAC.
Option c: Yes, because if the company does not comply with the PDPAC it will suffer penalties such as recovery of less interest on any damages awarded.
Option d: No, because there is another pre-action protocol which is more appropriate for this dispute.
Option e: Yes, because if the company does not comply with the PDPAC it may suffer penalties such as recovery of less interest on any damages awarded.
Option B is correct. Whilst compliance with the PDPAC is advisable, it is possible to commence court proceedings without compliance and therefore the solicitor’s advice was wrong.
Option A is wrong. Court proceedings can be commenced without providing evidence of compliance with the PDPAC.
Option C is wrong. The solicitor’s advice was wrong because the company is allowed to commence court proceedings without complying with the PDPAC. Also, the penalties for non-compliance with the PDPAC are at the court’s discretion, so the word ‘will’ is wrong.
Option D is wrong. The question makes it clear that the solicitor correctly advised that the PDPAC applies to this dispute.
Option E is wrong. The solicitor’s advice was wrong because the company is allowed to commence court proceedings without complying with the PDPAC. However, if it does so, it may suffer penalties such as those described in Option E.
A claimant issued proceedings for negligence against the defendant. The claimant personally serves the claim form on the defendant at 11am on Tuesday 14 November (a month with no bank holidays).
Is the claim form deemed served on Thursday 16 November?
A. No, because the claim form will be deemed served three clear days after personal service, on Monday 20 November.
Option b: No, because the claim form will be deemed seven days after personal service, on Tuesday 21 November.
Option c: No, because the claim form was personally served before 4.30pm on a business day so is deemed served on Tuesday 14 November.
Option d: Yes, because Thursday 16 November is the second day after personal service occurred and it is a business day.
Option e: Yes, because Thursday 16 November is the second business day after personal service occurred.
Option E is correct. Claim forms are deemed served on the second business day after the step required has occurred. Here, personal service occurred on Tuesday 14 November, and the second business day after this date is Thursday 16 November.
Option A is wrong. Claim forms are deemed served on the second business day after the step required has occurred, not three clear days after this date.
Option B is wrong. Claim forms are deemed served on the second business day after the step required has occurred, not seven days after this date.
Option C is wrong. It is possible for documents other than the claim form to be deemed served on the same day where personally served before 4.30pm on a business day, but this rule does not apply to claim forms. Claim forms are deemed served on the second business day after the step required has occurred.
Option D is wrong. Documents other than the claim form which are served by first class post or DX are deemed served the second day after posting, provided that day is a business day (and, if not, on the next business day). However, this is not the correct rule for personal service and, in any event, different rules apply to claim forms. Claim forms are deemed served on the second business day after the step required has occurred. Deemed served is on Thursday 18 November, but this is because it is the second business day after personal service occurred.
A claimant wishes to serve proceedings against a defendant who lives in England by notifying the defendant about the proceedings via Facebook.
Can the claimant serve proceedings in this way?
A. The claimant can because the defendant lives in the jurisdiction.
Option b: The claimant can because this is a permitted method of service under the Civil Procedure Rules.
Option c: The claimant can so long as it obtains the permission of the court.
Option d: The claimant can because this is equivalent to sending documents by email which is permitted.
Option e: The claimant can so long as it first makes enquiries to check that the defendant regularly checks Facebook.
Option C is correct. Notifying the defendant via Facebook that proceedings have been commenced is not a method of service automatically permitted under the Civil Procedure Rules, but the court may permit this as an alternative method of service (where there is good reason to do so and the method chosen will bring the commencement of proceedings to the attention of the person to be served). Courts have permitted alternate service via Facebook in the past.
Option A is wrong. Whether the defendant is resident in the jurisdiction or overseas, service of proceedings must be conducted in accordance with the CPR or in a manner permitted by the court. Just because the defendant lives in England does not mean that the claimant can serve proceedings in any way it wishes.
Option B is wrong. As set out above, notification via Facebook that proceedings have been commenced is not a method of service permitted under the CPR. The court’s permission will be required and good reason will have to be shown as to why this method is necessary.
Option D is misleading. The CPR only permits service by electronic means (such as email) if the defendant has agreed in writing to accept service in this way. There is nothing to suggest this on the facts.
Option E is wrong. The claimant cannot treat the notification of proceedings via Facebook as service without the court’s permission. This is true whether or not the claimant has reasonable grounds for believing that the defendant will read the notification. (As part of its application to the court, the claimant will need to demonstrate why it believes notification via Facebook will bring the proceedings to the defendant’s attention.)
A claimant has issued a breach of contract claim against the defendant. The claim form has already been served and the claimant is now in a position to serve the particulars of claim. The claimant’s solicitor advises that, if the particulars of claim are posted first class at 2pm on Friday 15 September (a month with no bank holidays), they will be deemed served on Tuesday 19 September.
Is the solicitor’s advice correct?
A. Yes, because this the second business day after the particulars of claim were posted.
Option b: No, because the correct date of deemed service is Friday 15 September.
Option c: Yes, because this is three clear days after the particulars of claim were posted.
Option d: No, because the correct date of deemed service is Monday 18 September.
Option e: No, because the particulars of claim cannot be served by first class post.
Option D is correct. Particulars of claim served by first class post are deemed served on the second day after they are posted, provided that day is a business day. If not, they are deemed served on the next business day. Here, the second day after posting is Sunday 17 September but this is not a business day, so the particulars of claim are deemed served on Monday 18 September which is the next business day. The solicitor’s advice is wrong.
Option A is wrong. Claim forms are deemed served on the second business day after the step required has occurred, but the rules for deemed service of other documents, including particulars of claim served separately, are different. Here, the date of deemed service is Monday 18 September (as explained above) so the solicitor’s advice is wrong.
Option B is wrong. The solicitor’s advice is wrong, but the date of deemed service is Monday 18 September not Friday 15 September. It is possible for documents other than the claim form to be deemed served on the same day if served before 4.30pm on a business day, but this only applies to certain methods of service. Where documents are served by first class post or DX, the rules explained above apply.
Option C is wrong. The date of deemed service is Monday 18 September as explained above. The relevant time period for calculating deemed service is not three clear days and, in any event, Tuesday 19 September is not three clear days from Friday 15 September.
Option E is wrong. First class post is a permitted method of service for particulars of claim.
A man expects to recover damages of £150,000 in a personal injury claim on a full liability basis. However, he would accept contributory negligence at 10 percent. Interest on the claim to the date of issue of his claim form amounts to £1,290 and at that date his legal costs are £7,545.
Which of the following correctly describes how the statement of value should be completed in the claim form?
A. The claimant expects to recover more than £100,000.
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Option b: The claimant
expects to recover £157,545.
Option c: The claimant expects to recover £151,290.
Option d: The claimant expects to recover £150,000.
Option e: The claimant expects to recover £135,000.
.
Option A is correct and therefore all the other options are wrong. Why? When calculating how much the claimant expects to recover, the claimant must disregard that the court may make an award of interest or costs or make a finding of contributory negligence.
The man expects to recover damages of £150,000 (option D). That he would accept contributory negligence at 10 percent reducing the claim to £135,000 (£150,000 x 10% = £15,000) (option E) is irrelevant. That interest on the claim to the date of issue of her claim form amounts to £1,290 (£150,000 plus £1,290) (option C) is irrelevant. That at that date her legal costs are £7,545 (£150,000 plus £7,545) (option B) is irrelevant. Therefore, these proceedings will be issued in the High Court and the required statement of value is that provided for in option A.
A company is the defendant in a claim for a breach of contract. The claimant alleges that the defendant did not carry out the services of installing a new boiler, at their premises, using reasonable care and skill. The claim form was deemed served on 1 November, and the particulars of claim were deemed served on 3 November. The defendant filed an acknowledgement of service on 8 November.
Option a: 15 November
Option b: 17 November
Option c: 29 November
Option d: 1 December
Option e: 6 December
Option D is the correct answer. The defendant filed an acknowledgement of service, so its defence must be served no later than 28 days from deemed service of the particulars of claim.
Option A is wrong. This date is 14 days from deemed service of the claim form, but the deadline for the defence will run from deemed service of the particulars of claim, and as the defendant has acknowledged service it will have 28 days from that date in order to serve its defence.
Option B is wrong. This date is 14 days from deemed service of the particulars of claim, but the defendant has filed an acknowledgement of service so has 28 days from deemed service of the particulars of claim in which to file the Defence.
Option C is wrong. This date is 28 days from deemed service of the claim form, but the deadline for the defence will run from deemed service of the particulars of claim.
Option E is wrong. This date is 28 days from the acknowledgement of service, but the deadline for the defence will run from deemed service of the particulars of claim.
A claimant issued proceedings against a defendant in the High Court on Friday 2nd October. The claimant sent the claim form, marked particulars of claim to follow, to the defendant by first class post on Wednesday 4th November. The claimant then sent the particulars of claim to the defendant by fax on Friday 6th November at 10.30 a.m. The defendant filed an acknowledgment of service on Monday 9th November.
It is now Thursday 26th November. The defendant’s solicitor has received an email from the claimant’s solicitor to advise that they intend to file an application with the court today for judgment in default.
Can the claimant now correctly apply for judgment in default?
A. Yes, because the defence should have been filed by Wednesday 18th November.
Option b: Yes, because the defence should have been filed by Friday 20th November.
Option c: No, because the defendant has until Friday 4th December to file their defence.
Option d: No, because the defendant filed their acknowledgment of service before Friday 4th December.
Option e: No, because the defendant has until Monday 7th December to file their defence.
Option C is the correct answer because the particulars of claim are deemed served on Friday 6th November, the defendant filed an acknowledgment of service within 14 days and the defence is therefore due 28 days from deemed service of the particulars - by 4th December. The claimant cannot yet correctly apply for judgment in default.
Option A is wrong because the defendant has 28 days to serve the defence, and this is counted from deemed service of the particulars of claim.
Option B is wrong because the original time period of 14 days to file the defence (which ends on 20th November) was extended by a further 14 days because the defendant filed an acknowledgment of service within 14 days of deemed service of the particulars of claim.
Option D is wrong because the acknowledgment of service needed to be filed within 14 days of service of the particulars (by 20th November) and even where an acknowledgment has been filed, this does not prevent an application for judgment in default being made if the defence is not then filed.
Option E is wrong because the 28 days does not start from when the acknowledgment of service is filed.
A solicitor is acting for a firm of builders’ merchants. A claim was issued by one of the client’s customers and particulars of claim were deemed served yesterday. The customer claims that goods supplied by the client were substandard. The customer has refused to pay for the goods and is seeking damages for the additional costs of procuring replacement goods. The client denies that the goods were substandard and wishes to claim the unpaid sum from the customer.
Which of the following best describes how the solicitor should advise the client to respond to this claim?
A. defence should be filed as soon as possible or the customer will be able to obtain judgment in default.
Option b: The client will have to issue separate proceedings if it wishes to pursue a claim for the unpaid sum.
Option c: The client will be able to defend the claim and make a counterclaim for the unpaid sum but must make the counterclaim at the same time the defence is filed.
Option d: The client will be able to defend the claim and make a counterclaim for the unpaid sum and can make the counterclaim without the permission of the court at the same time the defence is filed.
Option e: The client should make a counterclaim for the unpaid sum and the customer will have 14 days to file an acknowledgment of service of the counterclaim.
Option D is correct. The client will be able to make a counterclaim, and this can be made without the permission of the court if it is filed with or before the defence.
Option A is wrong because the client will have 14 days from the date of deemed service of the particulars of claim to either acknowledge service or file a defence. The claimant would only be able to apply for judgment in default if the client does neither so there is no requirement to act ‘as soon as possible’ as the facts indicate that deemed service was yesterday.
Option B is wrong because a counterclaim can be made, rather than the client issuing separate proceedings.
Option C is wrong as a counterclaim can be made after the defence is filed but only if the court gives permission.
Option E is wrong as there is no requirement to file an acknowledgement of service of the counterclaim.
A client is a private limited company. A solicitor has received instructions from the company to start proceedings against the company’s previous auditors.
Which of the following best describes how the statement of truth should be completed in the claim form?
A. The solicitor may sign the statement of truth which should read, ‘I believe that the claimant believes that the facts stated in these particulars of claim are true.’
Option b: The statement of truth can only be signed on behalf of the company by a director.
Option c: If the statement of truth is signed by the solicitor, it must include a declaration that the solicitor has told the claimant of the possible legal consequences if the matters stated are untrue.
Option d: If the statement of truth is signed by the solicitor, they must do so in their own name and not that that of their firm.
Option e: If the statement of truth is signed by the solicitor, it must include a declaration that the partnership has authorised the solicitor to do so.
Option D is the best answer. By way of information, CPR, PD 22 para.
3.10 provides that a legal representative who signs a statement of truth must sign in their own name and not that of their firm or employer.
Option A is wrong. Where a solicitor signs such a statement of truth on behalf of a claimant client it should read, ‘The claimant believes that the facts stated in these particulars of claim are true.’ By way of information, CPR, PD 22 para. 3.7 provides that where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own.
Option B is not the best answer. The statement of truth can be signed on behalf of the company by any person holding a senior position in the company, such as a director, the treasurer, secretary, chief executive and manager.
Option C is wrong. Although that is the conclusion that the court will draw, such a declaration is not required in the wording prescribed for the statement of truth. By way of information, CPR, PD 22 para. 2.1 provides that the form of the statement of truth verifying a statement of case should be as follows: ‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
Option E is wrong. Where a solicitor signs a statement of truth, they are deemed to have their client’s authority to do so and no separate declaration to that effect is needed. By way of information, CPR, PD 22 para. 2.1 provides that the form of the statement of truth verifying a statement of case should be as follows: ‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
A large landscaping company has instructed solicitors to issue proceedings against a hotel chain for debt of £95,000 arising from an unpaid invoice. The hotel chain denies liability and asserts there are complicated factual issues involved in the claim. ADR has been unsuccessful.
Which of the following best describes the position regarding the issuing of the claim?
Which of the following best describes the position regarding the issuing of the claim?
A. Care must be taken when deciding the court in which the claim should be issued. If the incorrect venue is used there is a risk that the claim could be struck out by the court.
Option b: It is appropriate for the claim to be commenced in the High Court due to the complex factual issues involved.
Option c: The claim must be started in the County Court and can be issued in the County Court Money Claims Centre.
Option d: The claim can be commenced using Money Claim Online, but enforcement of a judgment would have to be dealt with by the County Court District Judge for the defendant’s area.
Option e: As the case is contested, the claim should be issued in the claimant’s local County Court Hearing Centre.
Option C is the correct answer. As the value of the claim is less than £100,000, it must be started in the County Court. As it is a money-only claim it can be issued in the County Court Money Claims Centre.
Option A is wrong. Although care should be taken when deciding in which court venue the claim should be issued, the purpose of this is to avoid the delay and expense of a subsequent transfer. It will not result in the claim being struck out.
Option B is wrong. Despite there being complex factual issues involved in the claim, all claims of a value of £100,000 or less (which do not include a claim for damages in respect of personal injury) must be started in the County Court.
Option D is wrong. As this case involves a money only claim for £95,000 the whole case from issue through to enforcement can be dealt with via Money Claim Online.
Option E is wrong as the claim in this case is for money only, so it is more appropriate to issue in the County Court Money Claims Centre than a local County Court Hearing Centre. If a hearing is required because the claim is contested, the matter can then be transferred to the County Court Hearing Centre, usually local to the defendant.
A claimant issues and serves proceedings against a defendant for negligence, after his car knocked her from her bike at a roundabout. The defendant denies liability. The claimant subsequently discovers that the defendant had acted to avoid a motorcycle driver who had cut across him on the roundabout. The claimant applies to the court to add the motorcycle driver to the proceedings as a second defendant. The limitation period does not expire for another two years.
Will the court agree to add the motorcycle driver as a second defendant?
A. Yes, because the application has been made within the limitation period and it is desirable to add the motorcycle driver to resolve matters in dispute.
Option b: Yes, because the application has been made within the limitation period and the claim cannot be properly carried on without adding the motorcycle driver as a second defendant.
Option c: No, because the motorcycle driver’s consent must be filed at court before they are added as a defendant.
Option d: No, because the claim can be properly carried on without adding the motorcycle driver as a defendant.
Option e: No, because the application to add a second defendant can only be made by an existing defendant to the claim.
Option A is correct because where the application has been made within the limitation period (as it has been here) the court is likely to agree to add a new party where it is desirable to resolve matters in dispute. Adding the motorcycle driver as a second defendant will likely help to resolve liability, which is still in dispute.
Option B is wrong because, where the application has been made in the limitation period (as it has been here), whether the claim can be properly carried on without adding the new party is not a ground that the court will consider. The court will only consider this where the application is made outside of the limitation period. Further, the claim could arguably be properly carried on without adding the motorcycle driver.
Option C is wrong because written consent is required of claimants before they are added or substituted, rather than defendants. The court does not need consent of the motorcycle driver to add them as a second defendant.
Option D is wrong because this is not the test the court will apply when considering the claimant’s application. As above, where the application has been made in the limitation period (as it has been here), whether the claim can be properly carried on without adding the new party is not a ground that the court will consider. The court will consider whether it is desirable to add the motorcyclist in order to resolve matters in dispute.
Option E is wrong because the application can be made by either an existing party, or a person who wants to become a party. The application may therefore be made by the claimant.
A company entered into a written contract with a firm of plumbers on 7 February. The contract required the firm to renew all the plumbing in the company’s offices for an agreed sum of £56,700. The firm failed to carry out the works properly causing the company’s offices to flood on 27 May. The cost of repairing the offices and the company’s loss of profits was £212,450.
Which of the following best describes how the brief details of claim should be completed in the claim form?
A. The defendant breached its duty of care to act as a firm of reasonably competent plumbers. The clamant claims damages arising from the defendant’s negligence of £212,450 being the cost of repairing the offices and the company’s loss of profits.
Option b: In breach of a written contract made between the parties on 7 February [last year] the defendant failed to exercise reasonable care and skill when renewing the plumbing in the claimant’s offices. The defendant caused the claimant’s offices to flood on 27 May. The clamant claims damages of £212,450 being the cost of repairing the offices and the company’s loss of profits.
Option c: The claimant’s offices were damaged by a flood caused by the defendant’s breach of their written contract. The clamant claims damages.
Option d: The claimant’s offices were damaged by a flood caused by the defendant’s negligence. The clamant claims £212,450.
Option e: The claimant’s cause of action is breach of contract. The remedy sought is damages. The award of damages should place the claimant in the same position as if the contract had been performed by the defendant.
Option B best describes how the brief details of claim should be completed in the claim form. The brief details must be a concise statement of the nature of the claim and specify the remedy which the claimant seeks. Here the nature of the claim is breach of a written contract made between the parties on 7 February. The breach was the defendant’s failure to exercise reasonable care and skill (a term implied into the contract by s 13 of the Supply of Goods and Services Act 1982) when renewing the plumbing in the claimant’s offices. The defendant caused the claimant’s offices to flood on 27 May. The remedy claimed is damages of £212,450 being the cost of repairing the offices and the company’s loss of profits.
Option A is not the best answer. It could be alleged that the defendant breached its duty of care to act as a firm of reasonably competent plumbers. However, the brief details should at least identify how the duty of care arose and was broken. The remedy is stated. See the feedback to the correct option B.
Option C is not the best answer. It is factually correct that the claim is based on the allegation that claimant’s offices were damaged by a flood caused by the defendant’s breach of contract. However, the brief details must be a concise statement of the nature of this claim and specify the remedy which this claimant is seeking. The brief details are therefore facts establishing this claim and remedy sought. Those facts are missing here. See the feedback to the correct option B.
Option D is not the best answer. It could be alleged that the claimant’s offices were damaged by a flood caused by the defendant’s negligence. So, the cause of action could be based on negligence rather than breach of contract. But in those circumstances, the brief details should at least identify how the duty of care arose and was broken. The clamant claims £212,450 but the factual details are missing. See the feedback to the correct option B.
Option E is wrong. The brief details must be a concise statement of the nature of this claim and specify the remedy which this claimant is seeking. The brief details are therefore facts establishing this claim and the remedy sought. No facts are stated here. The brief details of claim must not be general principles of law as set out here. See the feedback to the correct option B.
A claim form is served by first class post on Friday 2 April. The particulars of claim is delivered to a permitted address at 5pm on the following Thursday 8 April. The next day is Good Friday and the Monday 12 April is also a bank holiday, being Easter Monday.
Which of the following statements gives the correct days of deemed service?
A. The claim form is deemed served on Tuesday 6 April; the particulars of claim is deemed served on Tuesday 13 April.
Option b: The claim form is deemed served on Monday 5 April; the particulars of claim is deemed served on Thursday 8 April.
Option c: The claim form is deemed served on Tuesday 6 April; the particulars of claim is deemed served on Friday 9 April.
Option d: The claim form is deemed served on Tuesday 6 April; the particulars of claim is deemed served on Monday 12 April.
Option e: The claim form is deemed served on Monday 5 April; the particulars of claim is deemed served on Tuesday 13 April.
Option A is correct. Under the rules, the claim form is deemed served on the second business day after the step required (here sending by first class post) has occurred. Monday 5 April is a business day, as is Tuesday 6 April so the claim form is deemed served on the Tuesday. However, different rules apply to other documents.
The particulars of claim was delivered to the permitted address at 5pm. Even though Thursday 8 April is a business day, it was delivered after the ‘cut-off’ time of 4.30pm, so this date is not the day of deemed service. Service will be effected on the next business day, which is Tuesday 13 April because both Friday and Monday are bank holidays. The other options are wrong because one or more of the dates given do not accurately describe the dates of deemed service.
A solicitor is acting for a claimant in a dispute where settlement has just been agreed. The solicitor is drafting the Tomlin Order recording the terms of the settlement. The parties have agreed the following terms:
Each party shall have liberty to apply to the court if the other party does not give effect to the agreed terms (‘Term 1’).
The defendant shall pay to the claimant the sum of £125,000 within 14 days of the Order in full and final satisfaction of the claim (‘Term 2’).
In the event of late payment, the defendant will pay interest on any sum remaining due at a rate of 10% per annum (‘Term 3’).
The claimant and the defendant will, on the making of the Order, enter into an agency agreement on terms agreed between the parties and held by the claimant’s solicitors (‘Term 4’).
In all sales of goods from the defendant to the claimant within five years of this Order, the defendant will offer the claimant a discount of 12% (‘Term 5’).
The solicitor is aware that certain terms must appear in the order itself, whilst others can be put in the schedule or a separate document that is normally held by the parties’ solicitors.
Option a. Term 1
Option b: Term 2
Option c: Term 3
Option d: Term 4
Option e: Term 5
Option A is correct. A term giving each party liberty to apply to court if the other party does not comply with the settlement terms must be set out in the order itself in order to be effective.
Option B is wrong. A term setting out payment of a settlement sum can, but does not need to, appear in the order itself.
Option C is wrong. A term setting out interest on late payment of the settlement monies does not need to appear in the order itself.
Option D is wrong. This term does not need to appear in the order itself and indeed cannot appear in the order itself since it is not within the court’s power to impose this.
Option E is wrong. This term does not need to appear in the order itself and again cannot appear in the order itself since it is not within the court’s power to impose this.
A large public limited company (‘PLC’) leases CCTV security equipment to a small, not-for-profit run gym. The gym has failed to pay the last 2 quarterly instalments for the equipment totalling £500 as it says the equipment has stopped working and PLC has failed to repair it. PLC writes a letter before claim to the gym suggesting each side instructs its own expert to inspect and report on the equipment. The gym obtains 3 quotations from different experts for the cost of preparing a report and the cheapest is £3,000.
Is PLC’s suggestion likely to be consistent with the objectives of pre-action conduct and protocols?
A. Yes, because it will support the efficient management of any court proceedings that are subsequently taken.
Option b: Yes, because it will reduce the costs of resolving the dispute.
Option c: No, because only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the expert issues.
Option d: No, because parties must not instruct experts until court proceedings have been started.
Option e: Yes, because litigation is the last resort and the parties must take all possible steps to try to settle the claim without proceedings.
Option C is correct. The financial resources of the parties are likely to be far from equal. The gym runs on a not-for-profit basis; PLC is a large public limited company. Moreover, the size of the claim is very small and the cheapest expert available to the gym would cost six times the amount of the claim. So, the appointment of a joint expert to report on the CCTV security equipment would be a reasonable and proportionate step to identify, narrow and attempt to resolve the expert issues.
Option A is wrong for the reasons given in answering option C. Note that any court proceedings would be allocated to what is known as the small claims track where the court would not normally permit expert evidence from each side and would expect no more than a single joint expert.
Option B is wrong as the costs are disproportionately increased by the proposal.
Option D is wrong. Parties will often have to instruct experts before court proceedings have been started but they should also consider jointly appointing an expert.
Option E is wrong. Whilst litigation is a last resort, parties should take only reasonable and proportionate pre-action steps.
A cleaning firm entered into a contract with a company to purchase a quantity of cleaning materials for £10,000. In accordance with the terms of the contract, the firm paid half the price when the materials were delivered. The firm has refused to pay the balance as the materials are not of satisfactory quality and the company has refused to supply any replacements. The firm has rejected the materials and obtained replacements from another supplier at a cost of £15,000.
Ignoring interest, what sum can the firm properly demand from the company in the letter before claim to be submitted pursuant to the Practice Direction on Pre-action Conduct and Protocols?
A. £25,000.
Option b: £20,000.
Option c: £15,000.
Option d: £10,000.
Option e: £5,000.
Option D is correct, meaning the other options are wrong. Damages for breach of contract are awarded to put the claimant in the position they would have been in had the contract been properly performed. The firm has spent £20,000 to secure the cleaning materials that it needed but it should only have had to pay £10,000 to do so. The difference between those two figures is £10,000. Put another way, the £5,000 the firm paid to the company is consideration that totally failed and it had to pay £5,000 more to obtain the replacement cleaning materials.
The claimant’s solicitor in a personal injury claim issued proceedings in the High Court and included their email address for service on the claim form. The claimant’s solicitor was not ready to serve proceedings until just before expiry of the time period for service and decided to serve by email to save time. The claimant’s solicitor did not check whether the defendant’s solicitor would accept service by email but located an email address on the headed paper of the defendant’s solicitor. The claimant’s solicitor then emailed proceedings to that address five working days ahead of the expiry of the period for service.
Has the claimant’s solicitor validly served proceedings?
A. Yes, because the inclusion of an email address on a solicitor’s letterhead is sufficient indication they will accept service by email.
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Option b: Yes, because service by email is valid and the period for service had not expired.
Option c: Yes, because the claimant’s solicitor had included their email address on the claim form.
Option d: No, because service by email is not valid in any event.
Option e: No, because the defendant’s solicitor had not specifically confirmed that they would accept service by email.
Option E is correct because service by email is only valid if the receiving party has expressly confirmed that this method may be used for service or included an email address in a statement of case for the purpose of service of proceedings. Neither of these things have happened on the facts.
Option A is wrong because inclusion of an email address on a solicitor’s letterhead is not sufficient indication they are willing to accept service by email. Inclusion of a fax number on the letterhead, however, is sufficient indication that they will accept service by fax.
Option B is wrong because, as explained above, service by email is only valid if the receiving party has confirmed they will accept service by email or included an email address in a statement of case for the purpose of service of proceedings.
Option C is wrong because although the claimant’s solicitor has indicated in a statement of case that they will accept service by email, this does not mean the defendant’s solicitor must also accept service by email.
Option D is wrong, because service by email can be valid as long as the receiving party has confirmed it is an accepted method of service, or they have included an email address in a statement of case for the purpose of service of proceedings.
A claim form was served on the defendant’s solicitors by fax on Friday, 1 May. The fax was received by the defendant’s solicitors at 4.45pm. The claim form stated that Particulars of Claim were to follow.
The Particulars of Claim were couriered to the defendant’s solicitors on Wednesday, 6 May, the courier arriving at 3.30pm.
The defendant’s solicitors filed an acknowledgment of service on Tuesday, 12 May indicating an intention to defend.
Using the calendar below, what is the latest date by which the defendant’s solicitors can file their client’s defence?
Option a. 26 May
Option b: 29 May
Option c: 2 June.
Option d: 3 June.
Option e: 8 June.
Calculating the period for filing the defence by reference to service of the claim form (this might have been your thinking if you chose option C). The deemed date for filing the defence in this case is calculated by reference to service of the Particulars of Claim.
Mistakenly thinking that an acknowledgment of service buys the defendant an extra 14 days in which to file its defence, when it fact it gives the defendant 28 days from deemed service of the Particulars of Claim. These are not the same thing especially where, as here, the defendant files its acknowledgment of service early. (If you made this mistake, this might have led you to choose option A.)
A claimant, who lives in England, was on a camping holiday in Scotland when they were involved in a road traffic accident with the defendant’s vehicle. The claimant suffered property damage and personal injury as a result of the accident. Upon returning home, the claimant commenced proceedings in the English courts and served proceedings on the defendant. The defendant is based in Scotland and intends to defend the claim but believes that the claim should be heard by the Scottish courts.
What is the best course of action for the defendant?
A. The defendant should file a defence disputing the jurisdiction of the court.
Option b: The defendant should acknowledge service so that they have additional time in which to file their defence.
Option c: The defendant should acknowledge service disputing the jurisdiction of the court.
Option d: The defendant should dispute jurisdiction within the acknowledgment of service and make an application to the court disputing jurisdiction.
Option e: The defendant should make an application to the court for summary judgment against the claimant.
Option D is the correct answer as a defendant who wishes to dispute jurisdiction should indicate this in the acknowledgement of service and should then make an application to the court disputing jurisdiction within 14 days. If the defendant does not take these steps, they will be taken to have submitted to the jurisdiction of the English courts.
Option A is wrong. The defendant should not wait to file a defence before disputing jurisdiction for the reasons explained above.
Option B is wrong. The defendant will receive additional time for the defence if it files an acknowledgment of service, but this alone is not the best course of action as the defendant must state on the acknowledgment that they dispute jurisdiction and then make an application disputing jurisdiction.
Option C is wrong. Whilst this is the correct first step that the defendant should take, they should then also make an application disputing jurisdiction.
Option E is wrong. An application for summary judgment would not assist the defendant in disputing the jurisdiction of the court.
A claimant has issued proceedings against a defendant and the trial date is approaching. The parties enter into negotiations and agree that the defendant will pay half of the outstanding invoice that is in dispute, and the claimant will supply additional materials at no extra cost. The claimant does not want other customers to be aware of this arrangement. Both parties are represented by solicitors.
Now the parties have agreed a resolution to their dispute, what answer describes the best way forward?
A. The claimant will agree to discontinue their claim.
Option b: The parties will record their agreement in an exchange of correspondence.
Option c: The parties will need to attend a court hearing to confirm their agreement.
Option d: The parties should sign a formal consent order to be sealed by the court.
Option e: The parties should sign a Tomlin order.
Option E is correct. Option A does not apply in these circumstances. A notice of discontinuance would be served by the claimant where, for example, they conclude that they are unlikely to succeed at trial and so decide to cut their losses and bring the litigation to a halt.
Option B is wrong because proceedings have been issued and, thus, recording the terms of the settlement in correspondence would not be sufficient. Option C is wrong as there is no need for a court hearing to confirm the agreement – it may be ratified in the absence of the parties.
Although the agreement could be confirmed in either a consent order (option D) or a Tomlin order (option E), the latter is the best way forward as the claimant does not want other customers to be aware that they have supplied the defendant with additional materials at no extra cost. If a Tomlin order is used, this term could be kept confidential by placing it in the schedule to the agreement or in a separate document.
