Statements of case and interim applications Flashcards
A claimant company issues proceedings against a defendant company for breach of an oral contract, entered into by the managing directors of the respective companies. The defendant files and serves a defence in time, which states only that ‘the defendant was not in breach of the terms of the contract, and in any event disputes the terms of the contract as asserted by the claimant’. The defendant’s solicitor writes to the claimant and explains that they are having difficulties contacting the managing director of the defendant company, as he has retired. The claimant makes an application to the court for summary judgment.
Is the claimant likely to be successful in their application?
A-No, because the claimant cannot make an application for summary judgment once a defence has been filed.
B-Yes, because the defendant has filed an insufficient defence and the claimant therefore has a real prospect of succeeding in their claim.
C-Yes, because it would be consistent with the overriding objective to grant summary judgment.
D-No, because only defendants can make an application for summary judgment.
E-No, because there is a compelling reason why the case should be disposed of at trial.
Option E is correct because there is a need to allow more time for the matter to be investigated, due to the defendant being unable to contact a key witness. This is particularly likely because one of the central issues, the terms of the contract, will be disputed oral evidence.
Option A is wrong because the claimant cannot make an application for summary judgment until the defence has been filed, otherwise it would not be possible to prove the defendant has no real prospect of successfully defending the claim under Rule 24.2.
Option B is wrong because the claimant must establish that the defendant has no real prospect of successfully defending the claim rather than that the claimant has a real prospect of succeeding on the claim. In addition, if the court found the defendant had no real prospect of successfully defending the claim due to the insufficient defence, the claimant must also prove there is no other compelling reason for the case to proceed to trial.
Option C is wrong because whilst summary judgment is consistent with the overriding objective, this is not itself a ground for summary judgment under Rule 24.2.
Option D is wrong because both claimants and defendants can apply for summary judgment, and in fact such applications are normally brought by the claimant.
A solicitor represents a claimant in a personal injury claim likely to be worth more than £100,000 arising from a road traffic accident. Proceedings have been issued and the time for acknowledgement of service has expired. The claimant’s long-term prognosis is unknown and since the accident they have been unable to work so are struggling financially. Liability has not been admitted however all evidence suggests the defendant is to blame. The defendant has refused to make a voluntary interim payment and the solicitor advises that a court application for an interim payment is likely to succeed.
Is the solicitor’s advice correct?
A-Yes, because the claimant is struggling financially as a result of the accident.
B-Yes, because the claim is worth more than £75,000.
C-Yes, because it is likely the claimant could prove on the balance of probabilities that they would obtain judgment at trial for a substantial amount of money.
D-No, because liability must be admitted or judgment obtained before the court will award an interim payment.
E-No, because the claimant’s long-term prognosis is unknown and the situation in which they are unable to work is ongoing so the court cannot order an interim payment at this stage.
Option C is correct because this is one of the grounds which must be satisfied before the court will make an interim payment under CPR Part 25. The evidence suggests that the defendant is to blame, therefore it is likely the claimant could prove on the balance of probabilities they would obtain judgment if the case went to trial. The claim is worth over £100,000 so if the claimant obtained judgment it would likely be for a substantial amount of money (other than costs).
Option A is wrong because this is not a ground under CPR Part 25. The claimant does not need to be in financial hardship to be awarded an interim payment.
Option B is wrong because there is no threshold figure; as above, the court must be satisfied that the claimant would obtain judgment at trial for a substantial amount of money (other than costs).
Option D is wrong because the claimant does not have to have obtained an admission of liability or judgment for the court to award an interim payment (although these are possible grounds under CPR Part 25). As above, the court may still award an interim payment if satisfied that the claimant would obtain judgment at trial for a substantial amount of money (other than costs).
Option E is wrong because if a situation is ongoing the court is more likely to award an interim payment. Here, there is likely to be a delay in assessment of damages because the claimant’s long-term prognosis is unknown.
Generally, the claimant is prevented from making an application for summary judgment in which one of the following situations?
A-Where the defendant has not filed an acknowledgment of service or a defence.
B-Where the defendant has not given its consent.
C-Where the court has not given permission.
D-Where the defendant has not filed an allocation questionnaire.
E-Where the defendant has not filed an acknowledgment of service and a defence.
Option A is the correct, unless the Court gives permission or a practice direction provides otherwise, the claimant cannot make an application for summary judgment before the defendant has filed an acknowledgment of service or a defence.
Option B is wrong there is no requirement for the defendant to give consent.
Option C is wrong you do not need the permission of the court to make an application for summary judgment.
Option D is wrong there is no requirement for a defendant to file an allocation questionnaire before an application for summary judgment can be made,
Option E is wrong because there is no requirement for both an acknowledgment of service and a defence. If either have been filed, then a summary judgment may be applied for.
An events planning company (the claimant) brings a claim against a catering company (the defendant) for breach of a written contract which provided that the defendant would supply the claimant with catering for various events. The claimant alleges the defendant, in supplying food and a catering service, breached implied contractual terms as the food supplied was of a poor standard. The claimant seeks damages for loss of profit plus interest on those damages. The claimant prepares to issue proceedings and drafts the particulars of claim.
Which of the following correctly describes the approach the claimant should take when drafting the particulars of claim?
A-The claimant should confirm that the defendant is a catering company which supplies food for events and catering services.
Option A is correct because in a breach of contract claim, where the contract relates to the parties acting in the course of business, the claimant should confirm the defendant’s business in the particulars of claim.
A solicitor is preparing particulars of claim. The claim is for damages for breach of contract following the supply of defective goods by the defendant. The claim has been issued in the High Court. Both parties are limited companies. The written contract of sale provides for payment of the goods within 28 days of delivery, failing which interest at 9% per annum is payable on any overdue balance.
Which of the following best describes how the solicitor should claim interest in the particulars of claim?
A-The solicitor should claim interest at the rate of 9% per annum on any damages awarded as this is the rate specified in the written contract.
B-The solicitor should claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the compensation due under that Act.
C-The solicitor should claim interest under section 35A of the Senior Courts Act 1981. The solicitor will need to include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued.
D-The solicitor should claim interest under section 35A of the Senior Courts Act 1981. The solicitor will need to include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued.
E-The solicitor does not need to include any claim for interest as this is deemed to have been made.
Option D is correct because it will give the court the power to award interest at its discretion under s.35A Senior Court Act 1981.
Option A is wrong because the contractual interest rate only applies where payment for the goods is late, not to a claim for damages.
Option B is wrong because this is only available for debt actions.
Option C is wrong because this is an unspecified claim. Calculation of a daily rate and interest due to the date of issue is only required where the claim is specified.
Option E is wrong because if no claim for interest is made the court will have no power to award interest up to the date of judgment.
A solicitor is preparing particulars of claim. The claim is for the sum of £175,000 being the amount of consideration agreed between the parties for the claimant to supply goods to the defendant. The claim has been issued in the High Court. Both parties are limited companies. The written contract of sale provided for payment of the goods within 28 days of delivery, failing which interest at 20% per annum is payable on any overdue balance.
Which of the following best describes how the solicitor should claim interest in the particulars of claim?
A-The solicitor should claim interest at the rate of 20% per annum as this is the rate specified in the written contract. The solicitor will need to include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued.
B-The solicitor should claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 at such rate and for such period as the court sees fit to award.
C- The solicitor should claim interest under section 35A of the Senior Courts Act 1981 at such rate and for such period as the court sees fit to award.
D-The solicitor should claim interest under section 69 of the County Courts Act 1984. The solicitor will need to include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued.
E-The solicitor does not need to include any claim for interest as it is for the defendant, in any defence that is made, to state whether or not the interest rate of 20% per annum provided for in the contract is admitted, not admitted or denied.
Option A is the best answer. The claim is for a specified amount of money, namely a debt of £175,000. The written contract provides for interest at the rate of 20% per annum on the debt. The solicitor will need to calculate and include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued.
Option B is not the best answer. It is correct that interest could be claimed on this commercial debt under the Late Payment of Commercial Debts (Interest) Act 1998. However, as would be expected, the contractual rate of interest (20% pa) is much greater than that under the Act (8% pa above the Bank of England’s base rate). In addition, because it is a specified claim, the solicitor will need to calculate and include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued. See the feedback to the correct option A.
Option C is not the best answer. As the proceedings are in the High Court, a claim for interest could be made under section 35A of the Senior Courts Act 1981. However, as would be expected, the contractual rate of interest (20% pa) is much greater than that under the Act (normally 1 to 2% pa above the Bank of England’s base rate). In addition, because it is a specified claim, the solicitor will need to calculate and include the daily rate of interest payable and the total amount of interest due up to the date the claim form was issued. See the feedback to the correct option A.
Option D is wrong. Why? Because the proceedings are in the High Court and so it would never be appropriate to claim interest under section 69 of the County Courts Act 1984. See the feedback to the correct option A.
Option E is wrong. It is for the claimant to state any claim for interest. Should the defendant deny that the claimant is entitled to the interest claimed, then that denial should be stated and explained in the defence. See the feedback to the correct option A.
A claimant has issued proceedings against a defendant in negligence. The claim is disputed by the defendant, and the defendant proceeds to file a defence. Upon receipt of the defence, the claimant is unable to file a reply or understand the basis of the defence. The contents of the defence are limited and fail to state the defendant’s allegations in full.
Which of the following statements best describes the action that the claimant should take first?
A-The claimant should make an application to court to strike out the defence for failing to provide sufficient detail.
B-The claimant does not need to do anything as a reply to the defence is not required in the absence of a counterclaim.
C-The claimant should draft the reply to defence based on the information contained within the defence.
D-The claimant should write to the defendant and request further information on the defence.
E-The claimant should make an application to the court to request further information on the defence.
Option is D is correct because, the claimant may request further information from the defendant to seek clarification on any matter contained within the defence, especially if the matter is disputed. This is permitted under Part 18 – Request for Further Information.
Options A and E are wrong because, in line with the overriding objective of the CPR, parties should attempt to keep costs to a minimum and assist the court to further the overriding objective. In making applications without fist approaching the defendant, the claimant would be incurring costs and using court time, which may be avoided.
Option B is wrong because, although the claimant is not obliged to file a reply to defence in the absence of a counterclaim, a claimant is still entitled to request for clarity of the defence allegations in circumstances whereby it is difficult to understand what the exact allegations are.
Option C is wrong, because responding to a defence where issues are unclear would be contrary to the overriding objective, as the defence will most likely require amending later in proceedings.
A manufacturing company is the defendant in a misrepresentation claim. The defendant has made an application for permission to amend its defence, as it has realised at the last minute that the defence it has filed does not address all of the allegations set out in the particulars of claim. A hearing has been listed for Tuesday 8 June.
What is the latest date for service of the application notice on the claimant?
A-Tuesday 1 June
B-Wednesday 2 June
C-Friday 4 June
D-Saturday 5 June
E-Monday 7 June
Option B is the correct answer. The application notice must be served at least three clear days before the hearing. Clear day’s means that the date of service and of the hearing are excluded, as well as weekends and bank holidays. This means that Wednesday 2 June is the latest day for service, as Thursday 3 June, Friday 4 June and Monday 7 June are the three clear days.
Option A is wrong. Whilst the application notice would have been served in time if served by Tuesday 1 June, this is not the latest date for service.
Option C is wrong. The application notice would not have been served three clear days before the hearing, for the reasons set out above.
Option D is wrong. The application notice would not have been served three clear days before the hearing, for the reasons set out above.
Option E is wrong. The application notice would not have been served three clear days before the hearing, for the reasons set out above.
A company (the claimant) owns a supermarket on a retail park. When making a delivery of food and groceries to the claimant, the defendant loses control of his lorry and crashes into the window at the front of the supermarket causing extensive damage. The cost of rebuilding has been assessed as £28,500. The defendant is refusing to accept liability and so the claimant issues proceedings in the County Court.
Which of the following statements best describes how the claimant should make a claim for interest?
A-The claimant should claim interest pursuant to any relevant term in the contract between it and the defendant.
B-The claimant need not claim interest as this will be automatically added to the claim if successful.
C-The claimant must precisely calculate the amount of interest which has accrued up to the date of proceedings as well as the daily rate of interest which will continue to accrue.
D-The claimant must precisely calculate the amount of interest which has accrued up to the date of proceedings.
E-The claimant should set out the basis of its entitlement to interest, but need not calculate the amount owing.
Option E is correct. The court may award interest, but only if it is claimed – as a result, option B is wrong.
As the claim is for damages, and is therefore unspecified in nature, all the claimant is required to do is to set out the basis of its entitlement to interest. In this case, that entitlement comes from s 69 of the County Courts Act 1984. While there may be a contract between the claimant and the defendant, most likely that contract will be limited to the supply of goods by the defendant to the claimant. Any term for interest in that contract will presumably only exist for the benefit of the defendant should the claimant be late in paying any invoices for the supply of those goods. Option A therefore is unlikely to represent the best option on the facts.
It is only when the claim is specified in nature (a claim for monies owing in debt) that the claimant must precisely calculate both the amount of interest which has accrued and the daily rate of interest that will continue to accrue. For this reason, options C and D are both wrong.
The claimant is a company developing information technology systems and they have just developed a new type of social media. One of their employees is offered significant financial incentives to work for a competitor in producing their own product. The employee leaves the company and begins work immediately for the competitor. The company is concerned that the employee will use the confidential information and knowledge they have acquired and this will have a huge impact upon the company’s future profits. They have information that the employee downloaded material onto a mobile device and also that they may be moving to China to work with the competitor there.
Which of the following best describes the action that the company could take to protect their position?
A-The company should issue proceedings against the employee claiming damages for breach of contract and wait for the trial to determine these.
B-The company should apply for an interim injunction to prevent the employee from using the confidential information they have obtained.
C-The company should apply for a search order and a freezing injunction against the employee.
D-The company should apply for an interim injunction to prevent the employee from using the confidential information they have obtained, a search order and a freezing injunction.
E-The company should apply for an interim injunction to prevent the employee from using the confidential information they have obtained together with a search order.
Option D is correct. The company should apply for an interim injunction to prevent the employee from using the confidential information they have obtained, a search order to compel the employee to allow their premises to be searched for the mobile device and a freezing injunction to prevent them from moving their assets to China. As all three interim remedies are possible on the facts, options B, C and E are not the best ones.
Although option A is a correct course of action, waiting for the trial would mean the damage was done – the competitor would have developed their own social media product and the company would have lost the profits from doing so themselves.
A woman issues proceedings against a company for breach of contract relating to the building of a new house. The company respond with a full defence and a counterclaim for the second instalment, which they allege is owed by the woman for the building works carried out to date. The issues in dispute are complex and highly contested so the litigation is likely to take some considerable time to resolve. The woman has just lost her employment and is in financial difficulties. Her solicitor advises her to apply for an interim payment.
Is the woman likely to succeed in her application for an interim payment?
A-Yes, because the woman can apply for an interim payment as soon as she serves the particulars of claim.
B-Yes, because when deciding whether to grant the application for an interim payment, the court may take into account the woman’s financial hardship.
C-No, because liability has not been determined and the court must have established liability before an interim payment can be awarded.
D-No, because the litigation is complex and highly contested, so the court cannot be satisfied the woman would obtain judgment at trial.
E-No, because the company have served a counterclaim and this precludes the woman from being granted an interim payment.
Option D is the correct answer. The woman would not be granted an interim payment as the court is unlikely to be satisfied that, if the claim went to trial, she would obtain a judgment. Given that the case is complex and highly contested, there is real uncertainty as to which of the parties would succeed in the litigation.
Option A is wrong as the woman cannot apply for an interim payment after serving the particulars of claim; she must wait until after the time for acknowledging service has expired. Option B is wrong because the woman’s financial hardship is not a ground on which the court may grant the application.
Option C is wrong because (as stated above) the court may grant an application for an interim payment before liability has been determined provided the court is satisfied that the woman would obtain a judgment for a substantial amount of money against the company should the matter proceed to trial. Option E is wrong because the mere presence of a counterclaim does not preclude the court from granting an interim payment.
A sole trader seeks to bring a claim against a prospective defendant. The sole trader seeks advice from a solicitor, who explains that when the various statements of case for the claim have been finalised, the sole trader may need to sign a statement of truth contained in the statements of case before they are filed at court.
Which of the following phrases best represents the form of a statement of truth signed by the sole trader verifying a statement of case?
A-I believe that the facts stated in this [name document being verified] are true. I understand that I may be guilty of contempt of court if I make a false statement in a document verified by a statement of truth without an honest belief in its truth.
B-I believe that the facts stated in this witness statement are true. I understand 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.
C-I believe that the facts stated in this statement of case are true. I understand that I may be guilty of contempt of court if I make a false statement in a document verified by a statement of truth without an honest belief in its truth.
D-I believe that the facts stated in this statement of case are true. I understand 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.
E-I believe that the facts stated in this [name document being verified] are true. I understand 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 the correct answer – Civil Procedure Rules, PD22, paragraph 2.1.
Option A is wrong because it does not reflect the correct wording. In particular, it is important to appreciate (and for the client to understand) that they may be liable for contempt of court not just if they make a false statement, but cause someone else to make a false statement without an honest belief in its truth.
Option B is wrong because it refers to a witness statement, which is not within the definition of a statement of case. ‘Statements of case’ is defined in CPR 2.3 to mean ‘a claim form, a particulars of claim where these are not included in a claim form, defence, Part 20 claim or reply to defence.’
Option C is wrong partly because it does not reflect the correct wording (see the feedback to option A above), and also because it refers generically to a ‘statement of case’ rather than identifying the name of the document to be verified.
Option D is wrong because it refers generically to a ‘statement of case’ rather than identifying the name of the document to be verified.
A claimant, who is a successful wedding planner, is in dispute with her former clients, a couple who have not yet paid the contract price of £32,000 for her services organising their wedding which was on 1 July. Under the contract, the payment was due by the date of the wedding, and clause 7 of the contract provides for interest at 10% per annum for late payment from and including the date of the wedding. The claimant instructed her solicitor to issue proceedings against the couple (the defendants) and the claim form was issued on 11 November with particulars of claim attached.
Assuming that the figures set out below have been calculated correctly, which of the following best describes the information that the claimant’s solicitor should have included in the paragraph dealing with interest in the particulars of claim?
A-Under statute, the claimant is entitled to interest of 10% per annum on the sum due from 1 July to 11 November, the total amount claimed to date of issue is £1,204.66.
B-Under clause 7 of the contract, the claimant is entitled to interest of 10% per annum on the sum due from 1 July to 11 November, the total amount claimed to date of issue is £1,204.66 and the daily rate at which interest accrues is £8.99.
C-Under clause 7 of the contract, the claimant is entitled to interest of 10% per annum on the sum due from 2 July to 11 November, the total amount claimed to date of issue is £1,195.67 and the daily rate at which interest accrues is £8.99.
D-Under statute, the claimant is entitled to interest of 10% per annum on the sum due from 2 July to 11 November, the total amount claimed to date of issue is £1,195.67 and the daily rate at which interest accrues is £8.99.
E-Under clause 7 of the contract, the claimant is entitled to interest at a rate of 10% per annum on the sum due from 1 July to 11 November.
Option B is correct because there is a contractual interest rate of 10% per annum. The interest accrued is calculated from 1 July (as per clause 7 of the contract) until the date of issue on 11 November. The daily interest rate is £8.99 and this is multiplied by 134 days to calculate the interest accrued to date of issue.
Option A is wrong. Statutory entitlements to interest are generally only claimed in the absence of a contractual interest rate. Furthermore, one of those statutes – the Late Payment of Commercial Debts (Interest) Act 1998 – does not apply here as the defendants are customers (the Act only applying where the defendant is another business).
Option C is wrong because the contract states interest accrues from and including the date of the wedding (not the day after).
Option D is wrong because statutory claims to interest would not be relevant here (see the feedback to option A), and the interest would be calculated from and including the date of the wedding rather than the day after, as per the contract (see the feedback to option C).
Option E is wrong because whilst there is a contractual interest rate of 10% per annum, as this is a specified claim the accrued interest and daily rate must be included in the particulars of claim under CPR 16.4(2).
The claimant, a restaurant chain, alleges that the defendant supplied one of their restaurants with a faulty cooker. The cooker burst into flames and the particulars of claim include a claim for damage to the premises and a figure of £150,000. The defendant wishes to obtain more detail about the damage to the premises.
Which of the following best explains the action the defendant should now take?
A-The defendant should telephone the claimant and request further information about the damage to the premises as this is the most cost-effective course of action.
B-The defendant should serve a written request for further information about the damage to the premises on the claimant and must allow 28 days for a response.
C-The defendant should apply to court for further information about the damage to the premises because the information is reasonably necessary to enable the defendant to understand the case against it.
D-The defendant should serve a written request for further information about the damage to the premises on the claimant and provide a reasonable date for a response.
E-The defendant should apply for default judgment against the claimant because the particulars of claim are insufficiently detailed to allow the defendant to understand the case against it.
Option D is correct because it would be appropriate to seek further information using Part 18, which requires a party making a request for further information to serve a request in writing on the other party and to provide a reasonable date for a response.
Option A is wrong because a request for further information must be in writing, so it would not be appropriate to make the request via telephone even if this would save costs.
Option B is not the best answer because, although the defendant should serve a written request for further information on the claimant, there is no requirement to allow 28 days for a response. The defendant must provide a reasonable date for a response.
Option C is not the best answer because the defendant should serve a written request for further information on the claimant, and only make an application to court if the request is not responded to or cannot be complied with.
Option E is wrong because default judgment is a process used when a defendant does not respond to proceedings, so is not appropriate in these circumstances.
A junior solicitor is asked to prepare a memo for their supervisor, to remind them of the formalities and content requirements ahead of a meeting with a client to draft a witness statement. The case relates to a very contentious breach of contract claim.
Which of the following should be included in the memo?
A-The witness statement must include a statement of truth signed by the supervisor.
B-The witness statement must include any expert evidence or report relied upon.
C-The witness statement can include any information that the client wants to include as it is their statement of evidence.
D-The client may use their witness statement to argue their case and to make observations about the evidence of other witnesses.
E-The client must indicate which statements are made from their own knowledge and provide the source of any information which is not.
Option E is correct as this is a requirement set out in Practice Direction 32.
Option A is wrong as the client must sign the statement of truth, not the supervisor.
Option B is wrong as expert evidence is independent from witness statements of fact and submitted separately.
Options C and D are wrong. The client should only give factual evidence (so it is wrong to say that the statement can include any information that the client wants to include) and it is not the function of the witness statement to argue their case or to make observations about the evidence of any other witnesses.
