Studoc Paper 1

Question 1

Joseph seeks your advice in relation to a claim which he wishes to bring against Ben, who lives in the adjoining property. Ben recently demolished the fence which divides their rear gardens. Yesterday, Ben started to replace it with a taller one which encroaches onto Joseph’s garden. Joseph has asked both Ben and the builders to stop, however, they have ignored his request. The builders tell him that the work is progressing, and they will complete the fence in the next three days. If Ben continues to erect the fence in the same position, several of Joseph’s fruit trees will have to be removed and his plants will be deprived of light. It is clear that Ben will not stop unless a court order is obtained.
The exact position of the boundary is difficult to ascertain from the filed plans. Ben is relying on a document from 1921 which suggests that the boundary is in line with the fence he is currently erecting. However, this document is inconsistent with more recent ones, which show the boundary to be in the position of the demolished fence. Joseph wishes to make an application for an interim injunction to stop Ben continuing to erect the fence.
What does Joseph need to give Ben notice of the application and does he need to serve the supporting evidence?

[A] The application should be made without notice and as soon as possible but Joseph should take steps to notify Ben informally of it and serve the application notice and evidence in support.
[B] The application should be made on notice and the application notice and evidence in support should be served on Ben at least seven days before the Court is due to hear the application.
[C] The application should be made without notice and as soon as possible but Joseph should take steps to notify Ben informally of it. He does not need to serve the application notice or supporting evidence.
[D} The application should be made without notice and as soon as possible. In the evidence supporting the application, Joseph does not need to put forward matters relevant to Ben’s defence and need not mention the document from 1921.

Answer 1

ANSWER
[A] The application should be made without notice and as soon as possible but Joseph should take steps to notify Ben informally of it and serve the application notice and evidence in support.
[A] CPR 23.7 and 23APD 4.2
[B] Wrong. Time period is 3 days. CPR 23.7
[C] Wrong. CPR 23.7
[D] Wrong. White Book 2020 25.3.5 - As the application is being made without notice, the applicant is under a duty of full and frank disclosure when compiling evidence to go before the court, and that will mean putting before the court evidence which may also assist Ben ( namely the 1921 document which suggests that the boundary is in line with the fence that he is building). This duty of full and frank disclosure also applies even if informal or short notice is given (White Book 2020 25.3.5.1) 

Question 2

You are instructed on behalf of Chase Holdings PLC (“CH”), who have brought a claim in the County Court. The trial date has been set for Monday next week. Your instructing solicitors have just discovered that one of CH’s witnesses, John, is reluctant to attend trial due to pressure of work. John is required to give evidence on the first day of the trial. It is now Tuesday in the week before the trial starts and your instructing solicitors telephone you in chambers seeking your advice on what should be done.
Which of the following statements is correct as to whether John can be compelled to attend the trial?
[A] CH should issue a witness summons requiring John to attend the trial to give evidence. Permission of the Court is not required, and the witness summons will be binding provided it is served on the witness at any time prior to the date on which he is required to give evidence.
[B] CH should issue a witness summons requiring John to attend the trial to give evidence. Permission of the Court is required because it is less than seven days before the trial.
[C] CH should issue a witness summons requiring John to attend the trial to give evidence. Permission of the Court is not required, but a direction should be sought that the witness summons will be binding although it will be served less than 14 days before the trial.
[D] CH cannot issue a witness summons as John is one of CH’s own witnesses.

Answer 2

ANSWER
[B] CH should issue a witness summons requiring John to attend the trial to give evidence. Permission of the Court is required because it is less than seven days before the trial.
CPR 34.3 and 34.5

Question 3

Gavin, a carpenter, was injured while working on a construction site on 14 January 2017. He cannot remember anything about the accident. On 8 February 2017, a workmate told him he had been hit on the head by a brick and knocked unconscious. The brick had been dropped by a sub-contracted bricklayer, Alfred, who was working from scaffolding above him.
Gavin was unsure whether he had a valid claim for damages and consulted solicitors about his accident on 19 September 2018. They told him the same day that he had a claim against Alfred’s employers with good prospects of success. Enquiries were made by Gavin’s solicitors, and it was only on 3 October 2018 that they discovered that Alfred was employed at the time of the accident by M&L Construction PLC (“M&L”).
Due to an oversight by Gavin’s solicitors, proceedings were not issued against M&L until 10 March 2020.
Which of the following statements correctly reflects when time began to run for limitation purposes?
[A] 14 January 2017, as this is when the accident happened.
[B] 8 February 2017, as this is when Gavin was aware he had a significant injury.
[C] 19 September 2018, as this is when he received expert advice that he had a claim with good prospects of success.
[D] 3 October 2018, as this is when the identity of Alfred’s employer became known.

Answer 3

ANSWER
[D] 3 October 2018, as this is when the identity of Alfred’s employer became known.
Limitation Act, s. 14.

Question 4

Raj brings a medical negligence claim against his local NHS Trust. Raj and the Defendant comply with the relevant pre-action protocol and proceedings are issued and served. Shortly after service of the defence, the Defendant makes a Part 36 offer to settle the claim. Raj accepts the offer within the relevant period. The costs are to be assessed on the standard basis.
How will the Court approach the assessment of Raj’s legal costs? [A] Allow all costs if they are just and reasonable in amount.
[B] Allow costs that are proportionately and reasonably incurred or proportionate and reasonable in amount.
[C] Allow costs that are justly and reasonably incurred unless they are disproportionate or unreasonable in amount.
[D] Allow costs unless they are unreasonably incurred or unreasonable in amount.

Answer 4

ANSWER
[B] Allow costs that are proportionately and reasonably incurred or proportionate and reasonable in amount.
CPR 44.4 (1)(a) and CPR 1.1

Question 5

You have been briefed on behalf of Douglas, the Defendant, to appear at trial in the County Court in a claim brought by Carol. The Judge decides the entirety of the claim in favour of Carol and gives judgment for £20,000. When giving judgment, the judge commented unfavorably on Carol’s unreasonable failure to respond to an invitation to consider ADR before proceedings had commenced. In your submissions on costs, you bring to the judge’s attention a without prejudice offer to settle made by Douglas the week before trial with an express reservation of the right to refer to the letter on the issue of costs should the claim proceed to judgment.
In deciding what order to make in relation to costs, which of the following best describes the particular circumstances to which the court will have regard on these facts?
[A] Carol’s conduct before proceedings and the extent to which she complied with the Practice Direction – Pre-Action Conduct and Protocols, and Douglas’s offer to settle.
[B] The conduct of the parties before and during proceedings including the extent to which they complied with the Practice Direction – Pre-Action Conduct and Protocols, and Douglas’ offer to settle.
[C] The conduct of the parties before and during proceedings including the extent to which they complied with the Practice Direction – Pre-Action Conduct and Protocols, and that Carol has been wholly successful in her claim.
[D] The conduct of the parties, that Carol has been wholly successful in her claim, and Douglas’s offer to settle.

Answer 5

Answer
[D] The conduct of the parties, that Carol has been wholly successful in her claim, and Douglas’s offer to settle.
Explanation
In deciding on the order for costs, the Court will have regard to all the circumstances including: a) The conduct of all the parties; b) Whether a party has succeeded on part of its case, even if that party has not been wholly unsuccessful; and c) Any payment into Court or admissible offer to settle. (CPR 44.2(4)). What constitutes conduct is expanded upon in 44.2.(5) and includes the conduct of the parties before and during proceedings including the extent to which they complied with the Practice Direction – Pre-Action Conduct and Protocols. The only answer which captures the three circumstances set out in 44.2(4) is D. The compliance with the PD_PACAP is but one aspect of broad conduct of the parties which the court may take into account under 44.2.(5) and therefore A, B and C, although attractive, are too narrow.
A is incorrect because the conduct of the parties includes conduct of both parties and not just Carol and also omits consideration of the fact that Carol was wholly successful in her claim. Also see [D]
B is incorrect; although it correctly mentions the conduct of the parties before and during proceedings and Douglas’ offer to settle, it omits consideration of Carol’s success in the claim - also see [D]
C is incorrect as it omits consideration of Douglas’ offer to settle which is a key considerationunder 44.2(4) and also see [D]

Question 6

Five years ago, Gareth and Sarita Wright bought a house together. They instructed Kent Conveyancing LLP solicitors (“Kent”) to carry out the relevant searches for any encumbrances or pre-existing problems. Two months ago, the Wrights discovered a significant issue with the line of the property’s western boundary. Smith and Searle LLP solicitors (“Smith”) have advised the Wrights that they have a good claim against Kent if the searches were not undertaken correctly. Smith also advised that they should first seek to obtain Kent’s own working papers in order to determine whether the searches were correctly carried out. The Wrights wish to make an application for disclosure and inspection of the working papers.
What is the best advice to give the Wrights as to their application?
[A] The Wrights cannot obtain disclosure or inspection of the papers before the claim has been commenced.
[B] An order for pre-action disclosure and inspection will only be made if the Wrights can demonstrate to the Court that they have a prima facie case against Kent.
[C] The Court may order disclosure (if all other relevant requirements for preaction disclosure are met), however, all the documents will be subject to legal professional privilege and Kent may object to inspection on this ground.
[D] An order for pre-action disclosure and inspection may be made in these circumstances if various requirements are met, including that the papers would fall within Kent’s standard disclosure obligations, if proceedings had already started.

Answer 6

ANSWER
[D] An order for pre-action disclosure and inspection may be made in these circumstances if various requirements are met, including that the papers would fall within Kent’s standard disclosure obligations, if proceedings had already started.
[A] Wrong 31.16
[B] Wrong White Book 2020 31.16.4
[C] Wrong White Book 2020 31.3.5 and White Book 2020 31.3.8-9
[D] Correct 31.16

Question 7

Ramona hired a removal company, WVM Ltd to pack her belongings and move them to her new flat. When she unpacked her porcelain figurines, she discovered that most had been broken. She estimated the damage at about £3,000. Ramona obtained a judgment from District Judge Sharma against WVM after a trial in the Small Claims Track in the County Court. WVM wants to appeal against the judgment and seeks your advice. The hearing at which judgment was given took place 13 days
ago.
What is the best advice to give WVM regarding permission to appeal?
[A] They must apply for permission to appeal, to a Circuit Judge before the expiry of 21 days after the hearing before District Judge Sharma.
[B] They may appeal without permission, provided they do so within 21 days after the hearing before District Judge Sharma.
[C] Permission to appeal is required, but it is too late to apply now as District Judge Sharma should have been asked for permission to appeal at the hearing before him.
[D] They have one day remaining to apply to a Circuit Judge for permission

Answer 7

ANSWER
[A] They must apply for permission to appeal, to a Circuit Judge before the expiry of 21 days after the hearing before District Judge Sharma.
A is correct. CPR 52.12(2)
B is wrong CPR 52.3
C is wrong CPR 52.3
D is wrong CPR 52.12(2) and PD52A section 3 Table 1

Question 8

Matthew has commenced proceedings against Office Supplies Ltd (“OS”) for damages for breach of contract. Matthew wishes to make an application against Marina, who is not a party to the proceedings, for the disclosure of certain records which would save costs in the proceedings against OS.
What provision is there, if any, for Matthew to make such an application?
[A] He may only do so if Marina is likely to become a party to the proceedings and the Court considers it just to make such an order.
[B] He may not do so because Marina is not a party to the proceedings. However, he would be able to obtain a Norwich Pharmacal order to obtain the information.
[C] He may not do so as proceedings have already started. However, he can make an application for specific disclosure against OS for the documentation and, if that application is successful, it will require them to obtain the documents from Marina.
[D] He may do so if the documents he seeks are likely to support his case or adversely affect the case of OS, and disclosure is necessary in order to dispose fairly of the claim or to save costs.

Answer 8

ANSWER
[D] He may do so if the documents he seeks are likely to support his case or adversely affect the case of OS, and disclosure is necessary in order to dispose fairly of the claim or to save costs.
[A] Wrong. See CPR r.31.17.
[B] Wrong. See CPR r.31.18.
[C] Wrong. See CPR r.31.2.
[D] Correct. See CPR r.31.17(3).
[WB31.17 and commentary White Book 2020 31.17.1]

Question 9

Romeo Cars Century Limited (Romeo) has issued a claim form against Mercury Parts Wales Limited (Mercury) seeking a declaration following an arbitration that the agreement made between the parties amounts to a valid arbitration agreement. Romeo intends to serve those proceedings against Mercury within the jurisdiction. Within what period from the date of issue must the claim form be served on Mercury?
[A] 14 days.
[B] 1 month.
[C] 4 months.
[D] 6 months.

Answer 9

ANSWER:
[B] 1 month.
Explanation
CPR 62.4(2) – Unless the court orders otherwise an arbitration claim form must be served on the defendant within 1 month from the date of issue and rules 7.5 and 7.6 are modified accordingly. Hence [B] is correct.
[A], [C] and [D] are incorrect for the reasons that [B] is correct.

Question 10

The Claimant in a personal injury claim allocated to the Fast-Track wishes to appeal against a decision made by a District Judge sitting in the County Court.
Is permission to appeal required, to which Judge or court, and will the appeal take the form of a review or a re-hearing?
[A] No, it may be made without permission to a Circuit Judge, and will be by way of a re-hearing (unless the Court considers that it would be in the interests of justice to hold a review).
[B] No, it may be made without permission to the High Court, and will be by way of a review of the decision (unless the Court considers that it would be in the interests of justice to hold a re-hearing).
[C] Yes, it must be made with permission to a Circuit Judge, and will be by way of a review of the decision (unless the Court considers that it would be in the interests of justice to hold a re-hearing).
[D] Yes, it must be made with permission to the High Court, and will be by way of a re-hearing of the decision (unless the Court considers that it would be in the interests of justice to hold a review).

Answer 10

ANSWER
[C] Yes, it must be made with permission to a Circuit Judge, and will be by way of a review of the decision (unless the Court considers that it would be in the interests of justice to hold a re-hearing).
See: CPR 52.21(1) and 52APD4 para 3.5 Table 1.

Question 11

Avelyn (aged 17), was driving her car with her friend Gertrude (aged 16), when she lost control of it and hit a tree. As a result, Gertrude sustained a fractured shoulder and whiplash injuries. Gertrude brings proceedings in the County Court against Avelyn in relation to her injuries. The proceedings are served but Avelyn does nothing about them. Gertrude, who believes that Avelyn is aged 18, obtains default judgment by request. Avelyn has just received the notice from the Court advising that a judgment has been entered against her and seeks your advice on whether the Court will set it aside.
What is the most likely reason that the Court will give when determining whether to allow or dismiss the application?
[A] Gertrude has obtained a valid judgment and the Court is unlikely to set it aside as Avelyn has no defence.
[B] The default judgment will be set aside as Avelyn is a child and the default judgment was obtained by request.
[C] The default judgment will be set aside as a judgment against a child must be approved by the Court.
[D] The default judgment will be set aside as a judgment obtained on behalf of a child must be approved by the Court.

Answer 11

ANSWER
[B] The default judgment will be set aside as Avelyn is a child and the default judgment was obtained by request.
[B] CPR 21.3, 12.10 and PD12 para 4.2(1). A claimant who sues a child if there is no litigation friend may not without the permission of the court take any step in proceedings except the issue and service of the claim form. CPR 12.10. The claimant must make an application in accordance with Part 23 to obtain default judgment against a child.
[A], [C] and [D] are all correct but they are not the reason that the court would set judgment aside at this time.

Question 12

On 17 December 2019, Peter issued a claim against John for damages for breach of contract. On 21 August 2020, the judge entered judgment for £27,000 The order was sealed on 24 August and served on John on 28 August 2020.
Unless the court orders otherwise, from which date does interest run on the judgment?
[A] 17 December 2019
[B] 21 August 2020 [C] 24 August 2020 [D] 28 August 2020

Answer 12

[The correct answer is B - Rule 40.8 (1) - interest runs from the date that judgment is given.] 

Question 13

Chester has issued proceedings against Denzil, claiming damages for personal injuries arising out of a road traffic accident. You have advised on quantum, and your view is that the damages for pain, suffering and loss of amenity are likely to be about £2,500, and that the special damages claim will be an additional £1,500. A defence has been filed denying liability and disputing quantum. Directions Questionnaires have been completed by both sides and returned to the Court.
What procedural step will the Court take next?
[A] Directions will be given starting with an exchange of witness statements.
[B] The claim will be listed for a pre-trial review.
[C] The claim will be allocated to the Small Claims Track.
[D] The claim will be allocated to the Fast-Track.

Answer 13

ANSWER
[D] The claim will be allocated to the Fast-Track.
[A] Wrong.
[B] Wrong.
[C] Wrong.
[D] Correct. After Directions Questionnaires have been filed, the Court will allocate the case to a track (CPR, r. 26.5(1)). This is a claim for personal injuries where the damages for pain, suffering and loss of amenity are estimated at £2,500. While the Small Claims Track is typically for claims with a value under £10 000, there is an exception where the value of the claim for is for £1,000 or more (r. 26.6 (1)), so this claim should be allocated to the Fast-Track. Therefore, [D] is correct.
[WB26.5 - 26.6(2)]

Question 14

Edwin, who was born in May 2000, suffered personal injuries in November 2016 when he was knocked off his bicycle by a negligent motorist. The driver failed to stop and he was only traced and his identity revealed in February 2018. Edwin has only just decided to commence a claim. You have been asked to consider limitation.
What is the correct advice to give regarding the limitation period? [A] It expired in November 2019.
[B] It expired in May 2020.
[C] It is still current and will expire in February 2021.
[D] It is still current and will expire in May 2021.

Answer 14

ANSWER
[D] It is still current and will expire in May 2021.
[A] Wrong. This statement is wrong because it assumes that Edwin’s cause of action accrued at the time of the accident and ignores s. 28 LA (and, indeed, ‘date of knowledge’).
[B] Wrong. Although there is some recognition that Edwin was previously under a disability, it assumes a limitation period of 2 years.
[C] Wrong. Whilst again there is some recognition that Edwin was previously under a disability, it calculates the 3-year period from Edwin’s date of knowledge.
[D] Correct. Edwin was under a disability (a child) at the time his cause of action accrued. The Limitation Act 1980 s. 28(1) and (6) provide that Edwin may bring an action at any time before the expiration of 3 years from the date when he ceased to be under a disability (attained majority). He attained majority in May 2018, thus the limitation period expires in May 2021.

Question 15

You are the Claimant in an action to which the Practice Direction - Pre-Action Conduct and Protocols applies. You are following the Practice Direction. In pre-action correspondence, you invite the Defendant to engage in alternative dispute resolution (“ADR”) and suggest mediation. The Defendant responds to most aspects of your letter, but she is silent in relation to ADR.
According to the Practice Direction - Pre-Action Conduct and Protocols, what is the correct advice to give the Claimant in relation to the Defendant’s silence regarding
ADR?
[A] It might be considered unreasonable by the Court and could lead to the Court ordering her to pay additional costs.
[B] It is a breach of the Practice Direction and will result in her being ordered to pay additional damages by the Court.
[C] It is a breach of the Practice Direction and puts her at risk of being ordered to pay additional damages by the Court.
[D] It conflicts with the overriding objective and could lead to the Court striking out her defence.

Answer 15

ANSWER:
[A] It might be considered unreasonable by the Court and could lead to the Court ordering her to pay additional costs.
Paragraph 11 Practice Direction - Pre-Action Conduct and Protocols

Question 16

Travis is a tenant in commercial premises owned by Laura. Near the end of Travis’ tenancy, Laura notes that the building is in a state of disrepair and raises this issue with Travis.

The tenancy agreement contains a dispute resolution clause providing for referral to a surveyor by way of expert determination in the event of a dispute over repairs arising. Travis does not want to refer the dispute for expert determination. He relies upon wording in the dispute resolution clause which he says indicates that, in limited circumstances, he can elect to mediate instead. Laura maintains that those circumstances do not apply in this case. She would, in any event, prefer the matter determined by a surveyor by way of expert determination rather than mediate with Travis. Laura asks for your advice as to how she might secure the appointment of a surveyor rather than mediate.
What is the best advice to give her?

[A] She should apply to the County Court for the appointment of a surveyor who is expert in the relevant field
[B] She should bring a Part 8 Claim to determine the construction of the dispute resolution clause in the tenancy agreement.
C. She should bring a Part 7 Claim to determine the construction of the dispute resolution clause in the tenancy agreement.

D. She should appoint a surveyor herself in order to determine the construction of the dispute resolution clause in the tenancy agreement.

Answer 16

Answer:
[B] She should bring a Part 8 claim to determine the construction of the dispute resolution clause in the tenancy agreement.
At this point all the parties need is a resolution to the problem of whether the dispute resolution clause applies in these circumstances. There is no real dispute on the facts. This makes Part 8 appropriate [B]. See Jackson ADR Handbook (2nd Edition, 2016) at 24.52. Part 8 proceedings may also be issued in advance of an expert determination to decide any disputes about the interpretation of the expert determination clause. [A] is not correct as without issuing proceedings the court does not have jurisdiction to hear a preliminary application in the matter It is not impossible for part 7 to be used [C] but this would not be the best course. See also Jackson ADR Handbook (2nd Edition, 2016) at 24.10 – In the event of a dispute between the parties, the court may be asked to construe the contract, and if it is clear and unambiguous, give effect to it. Without a contract or the agreement of the parties, there is no jurisdiction to refer to any expert for a preliminary decision on jurisdiction so
[D] is not correct 

Question 17

Brian is a solicitor acting for Jennifer, who has brought a claim against Anthony. Anthony’s solicitor is Patricia. It is a particularly complex case and Brian is the only solicitor in his firm with any knowledge of the case. The claim has been allocated to the Multi-Track and the Court has fixed a date for a Case Management Conference (“CMC”). Brian is unable to attend on this date. Patricia has consented to the variation of the date of the CMC.
What step, if any, should be taken regarding the CMC?
[A] Brian and Patricia should inform the Court in writing that the date of the CMC has been varied by consent.
[B] No step is necessary as the CMC will proceed on the date fixed by the Court in Brian’s absence.
[C] No step is necessary as the CMC will proceed on the date fixed by the Court and Brian should send another solicitor from his firm in his place.
[D] Brian should apply to the Court to vary the date for the CMC as the parties cannot vary the date of the CMC by written agreement.

Answer 17

ANSWER
[D] Brian should apply to the Court to vary the date for the CMC as the parties cannot vary the date of the CMC by written agreement.
CPR 29.4 / 29.5

Question 18

A claim form was issued by the County Court on Friday 27 September 2019. The Claimant, Ronald, informed the Court that he would serve the claim form. Ronald placed the claim form in an envelope addressed to the Defendant, Eric, with a firstclass stamp on it, and put it in the post box on Friday 24 January 2020. It was delivered to Eric on Saturday 25 January 2020.
What is the deemed date of service of the claim form, and has Ronald complied with the deadline for service of the claim form?
[A] Saturday 25 January 2020 and he has complied.
[B] Monday 27 January 2020 and he has failed to comply.
[C] Tuesday 28 January 2020 and he has complied.
[D] Tuesday 28 January 2020 and he has failed to comply.

Answer 18

ANSWER:
[C] Tuesday 28 January 2020 and he has complied.
CPR 7.5 and 6.14
CPR 6.14 A claim form is deemed to be served on the second business day after completion of the relevant step under rule 7.5.
The relevant step under 7.5 was the posting of the claim form by first class post on Friday 24 January 2020. This was completed before midnight on the calendar day four months after the date of issue of the claim form and therefore Ronald has complied with the deadline.

Question 19

Claire has sued Barry for negligent driving. In his defence, Barry alleges that the accident was caused by Claire’s negligent driving, but does not give any particulars. Claire’s solicitors wrote a very brief letter to Barry’s solicitors, the complete text of which was as follows:

7 July 2019
Dear Sirs,
County Court at Gladbury Claim No. 354676
Claire Hope and Barry Haynes
Request under CPR Part 18
With respect to your client’s defence, please tell us in what way you say our client was negligent.
Yours faithfully.

There has been no response and Claire’s solicitors wish to apply to the Court for an order for further information.
Why does this request not comply with the rules in relation to requests for further information?
[A] The request should have been in the prescribed form and not by letter.
[B] The request should have specified a date for a response.
[C] The request should have been verified by a statement of truth.
[D] A copy of the request should have been filed with the Court.

Answer 19

ANSWER
[B] The request should have specified a date for a response.
[A] Wrong.
[B] Correct.
[C] Wrong.
[D] Wrong.
[18PD.1]  

Question 19

Norma entered into a written contract with Jim for the hire of ten illuminated signs from Jim. The hire cost was £1,000 payable in advance. Payment was made but Jim failed to provide the signs. Norma had intended to hire the signs out at weddings and has lost £2,500 in profit as a result.
Jim failed to respond to all pre-action correspondence. Norma therefore issued a claim together with her particulars of claim for the contract price and loss of profit. Jim failed to file an acknowledgment of service or a defence within the correct time period because he was hospitalised. Norma obtained a default judgment against him. Jim wrote immediately to Norma explaining that he simply forgot to provide the lights and is willing to refund £1,000 but that he denies liability for the remainder of the claim. In a document purporting to be his defence, he failed to set out grounds for his denial of liability for the remaining claim. Two weeks have now passed and Jim is making an application to set aside judgment in default. In his application notice he sets out that onward hire to third parties was in breach of the written contract (attached to the application notice) and that he was not aware of Norma’s intentions.
How is the District Judge likely to deal with Jim’s application?
[A] Jim’s proposed defence discloses no real prospects of success and therefore the application will fail.
[B] Jim has failed to make his application promptly and therefore his application is
likely to fail.
[C] As Jim has a real prospect of successfully defending his claim, his application is likely to succeed.
[D] Jim failed to partake in pre-action correspondence and therefore his proposed defence has no real prospect of success and his application will fail.

Answer 19

ANSWER
[C] As Jim has a real prospect of successfully defending his claim his application is likely to succeed.
(CPR 3.4 and 13.3)

Question 20

AB Electricals Ltd (AB) and Circuit Partners (CP) entered into a contract for the supply of goods. Included in the contract was a clause agreeing to the use of expert determination in the event of a dispute. A dispute arose between AB and CP in relation to the supply of goods. To resolve the dispute, AB and CP entered into a contract with ED Ltd to provide expert determination on the matters in dispute. The contract with ED Ltd was silent on whether the determination would be final and binding on both parties.
What approach would the court take if there was a subsequent challenge to the expert determination?
[A] The court may imply a term in the contract with ED Ltd that the expert determination is to be final and binding on the parties.
[B] The court will consider that the contract with ED Ltd is void as the contract fails to include the fundamental term that it is final and binding on the parties.
[C] The court will treat any decision made in the expert determination process as advisory as opposed to being conclusive in the absence of such a clause in the contract with ED Ltd.
[D] The court will conclude that a contractual agreement between the parties to expert determination will be automatically considered as final and binding even though there is no clause expressly stating that in the contract with ED Ltd.

Answer 20

ANSWER
[A] The court may imply a term in the contract with ED Ltd that the expert determination is to be final and binding on the parties.
See Jackson ADR Handbook (2nd Edition, 2016) paragraphs 24.01 – 24.04. If there is no express term that the expert determination is to be final and binding, the court may imply such a term (24.04). As a consequence, answers [B], [C] & [D] do not accurately state the correct position and are therefore incorrect answers.

Question 21

Smiths Ltd (Smiths) brought proceedings against Bestco Ltd (Bestco) claiming the sum of £20,000, that being the price of Grade 1 lamb products it supplied to Bestco for use in its restaurants. Bestco filed a defence to the claim alleging that Smiths was in breach of contract as some of the meat was not of the appropriate quality, and sought to set off and counterclaim the sum of £7,000 for alternative lamb it had to buy from another supplier to replace the inferior meat. Bestco has served evidence that the lamb it had to replace was not of appropriate quality. Smiths is considering whether to make an application for summary judgment and seeks your advice.
What is the best advice to give Smiths?
[A] Smiths should make an application for summary judgment and is likely to be awarded summary judgment in the sum of £13,000.
[B] Smiths should not make an application for summary judgment because Bestco has a defence, namely breach of contract, which has a real prospect of success.
[C] Smiths should make an application for summary judgment and is likely to be awarded summary judgment in the sum of £20,000.
[D] Smiths should make an application for summary judgment and is likely to be awarded summary judgment in the sum of £20,000, although enforcement of the judgment is likely to be stayed pending trial of the counterclaim.

Answer 21

ANSWER
[A] Smiths should make an application for summary judgment and is likely to be awarded summary judgment in the sum of £13,000.
[A] This is the best answer because Bestco has a real prospect of successfully defending the balance of the claim as it has a defence of set off. See CPR 24.2 and White Book 2020 24.2.6.
[B] This is not the best answer because the defence only appears to be a partial defence to the claim. Only some of the meat is alleged to be of inferior quality and replacement meat cost £7,000, so Bestco appears to have no defence to the rest of the claim. See White Book 2020 24.2.6.
[C] This is not the best answer because it ignores the fact that there is a counterclaim that gives rise to a quantifiable partial defence of set off, and this is likely to prevent Smiths obtaining summary judgment up to the amount of the set off. See White Book 2020 24.2.6.
[D] This is not the best answer because Bestco’s counterclaim is a set off and so a partial defence to the claim. It is therefore unlikely that the court would grant judgment for the full amount of the claim, even if it did grant a stay of execution pending trial of the counterclaim.
 

Question 22

Grace has issued a claim against Henry. Both parties are represented by solicitors. Henry’s solicitors have confirmed by letter that they are authorised to accept service at their London office. Henry is temporarily staying at an address in the same street as Grace. He usually lives in a different town which is where his business is also located.
Where should she serve the proceedings on Henry? [A] Henry’s temporary residential address.
[B] Henry’s usual residential address.
[C] Henry’s business address.
[D] Henry’s solicitors’ address.

Answer 22

ANSWER
[D] Henry’s solicitors’ address
[A]-[C] Wrong. Where a solicitor acting for the Defendant has notified the Claimant in writing that the solicitor is instructed to accept service, the claim form must be served at that solicitor’s business address. These are not those addresses. See CPR 6.7(1)
[D] Correct. Where a solicitor acting for the Defendant has notified the Claimant in writing that the solicitor is instructed to accept service, the claim form must be served at that solicitor’s business address. See CPR 6.7(1).

Question 23

Sussex Car Sales Ltd (“SCS”) has brought a claim against Bristol Product Services Ltd (“BPS”) to recover a debt of £10,000. On 6 March 2020 the Court ordered that, unless BPS gave standard disclosure by serving its list of documents by 4pm on 31 March 2020, its defence would be struck out. It is now 22 April 2020. BPS has still not served its list of documents.
SCS ask you for clarification about the current position. What is the correct advice to give?
[A] When the deadline of 31 March 2020 passed, and BPS’s defence was struck out, judgment was automatically entered and costs awarded in SCS’s favour.
[B] SCS must file within 28 days from 31 March 2020 a request that judgment be entered and costs be awarded in their favour against BPS.
[C] SCS may obtain judgment and their costs against BPS by making an application to the Court.
[D] SCS may obtain judgment and their costs against BPS by filing a request with the Court.

Answer 23

ANSWER
[D] SCS may obtain judgment and their costs against BPS by filing a request with the Court.
[CPR 3.5]

Question 24

Culgaith Tyres Ltd (“Culgaith”) sold a consignment of tyres to Sowerton Garage Ltd (“Sowerton”). Sowerton did not pay, so Culgaith commenced a claim against them for the sum owed. Sowerton filed a defence, denying liability for the alleged debt on the ground that the tyres were not of satisfactory quality.
Culgaith alleges that there is reason to believe that Sowerton will be unable to pay Culgaith’s costs if ordered to do so and has made an application for security for costs. Sowerton says that, if it were ordered to give security for costs, it may be unable to afford to continue to defend the claim.
How will the court deal with the application?
[A] The application may be dismissed unless the evidence establishes that Sowerton will be unable to pay Culgaith’s costs if ordered to do so.
[B] The application must be dismissed if the Court believes that if the claim went to trial Culgaith would obtain judgment for a substantial amount of money against Sowerton.
[C] The application must be dismissed if the Court believes that Culgaith has no real prospect of succeeding on the claim against Sowerton.
[D] The application must be dismissed, as an order for security for costs cannot be obtained against Sowerton by Culgaith.

Answer 24

ANSWER
[D] The application must be dismissed, as an order for security for costs cannot be obtained against Sowerton by Culgaith.
[CPR 25.12, 25.13] White Book 2020 25.13.13

Question 25

Ryan has brought a claim against Terry in the County Court for the sum of £10,000 owed to him in respect of fees for his accountancy services (“the fee”). In his defence, Terry states that he owes Ryan nothing as it had been orally agreed that no fee would be payable. In his defence, Terry refers to a charity dinner that Ryan attended as his guest when Ryan told him that, in return for Terry recommending his accountancy services, he would waive the fee. Terry claims that this conversation was overheard by his wife, June, who has provided a statement to that effect. Ryan tells you that what Terry states is inaccurate. He confirms that he went to the charity dinner as a guest of Terry but did not at any time speak to Terry about the fee. He instructs you to make an immediate application for summary judgment. Terry is a well-off businessman who can easily afford to pay the fee for the accountancy services. Ryan states that since this has happened to him, others have told him that Terry has used a similar excuse to avoid having to pay professional fees. You advise Ryan of the different types of order that the Judge could potentially make in relation to the application for summary judgment.
What is the most likely order that a Judge would make? [A] Judgment on the claim.
[B] The striking out or dismissal of the claim.
[C] A conditional order.
[D] The dismissal of the application.

Answer 25

ANSWER
[C] A conditional order.
Answer [C] – 24PD5 and commentary at White Book 2020 24.2.3 - even though Ryan may feel Terry has a weak defence the SJ hearing is not a summary trial. The most appropriate order would be a conditional order because although the evidence relied upon by Terry is not incredible there is sufficient doubt raised to justify a CO.
Terry considering his financial means would be able to comply with any CO made.

Question 26

You act for George in a personal injury claim which arose as a result of a road traffic accident and to which the Pre-Action Protocol for Personal Injury Claims applies (the Protocol) The insurers for the driver of the vehicle which caused the accident (‘the insurers) have confirmed that only quantum is in dispute. In accordance with the Protocol, you write to the insurers with the names of three proposed medical experts, Dr X, Dr Y and Dr Z. The insurers respond indicating that they are happy with the instruction of any of the proposed experts. You instruct Dr X and obtain a medical report from him. George is unhappy with the contents of Dr X’s report which he considers to be unhelpful. He asks you for advice as to whether he must disclose and allow inspection of the report to the insurers and whether he is bound by its contents.
What advice do you give George and why?
[A] The report must be disclosed as Dr X is a joint expert and as such, jointly instructed by the parties. They are entitled to inspect it.
[B] George must disclose and allow inspection of Dr X’s report as he is a joint expert, but he is not bound by its contents, he can make a pre-action application to the court for permission to instruct another expert.
[C] Dr X is not a joint expert. George does not need to disclose and allow inspection of the report. The report is privileged.
[D] George does not have to disclose Dr X’s report as long as he makes an immediate pre-action application to the court for permission to instruct one of the other proposed experts, Dr Y or Dr Z.

Answer 26

ANSWER
[C] Dr X is not a joint expert. George does not need to disclose and allow inspection of the report. The report is privileged.
[A] this is incorrect. Paragraph 7.2 onwards of the pre-action protocol for PI claims confirms the procedures that must be followed in order to instruct an expert. See commentary paragraph C2A-003 White Book 2020. In short, albeit, the parties agree which medical expert to instruct, that does not mean the expert is jointly instructed. See also para 7.2, the expert report is not a joint report for the purposes of the CPR. The instructions come from the instructing party. The existence of the report does not have to be disclosed. Further even if disclosed, such reports are privileged, and the court cannot order their production.
[B] and [D] are incorrect for the same reason, although [D] is partly correct as he would not have to disclose it, but he would not need to make an application for permission to instruct another expert, he would simply instruct another.
[C] accords with what is set out in the commentary at C2A-003 White Book 2020, no need to disclose and on that basis no inspection would follow.

Question 27

You have been asked to advise in relation to the overriding objective. Which of the following is correct?
In accordance with the overriding objective, cases must be dealt with in ways which are proportionate to:
[A] the experience of the legal team working on the case.
[B] the reasonable cost of conducting the litigation.
[C] the financial position of each party.
[D] the experience of the Judge conducting the case.

Answer 27

ANSWER
[C] the financial position of each party.
Explanation
[A] There is no provision for this within the overriding objective.
[B] There is no specific provision for this within the overriding objective; the objective is worded in terms of saving expense
[C] This is provided for at CPR 1.1(2)(c)(iv)
[D] There is no specific provision for this within the overriding objective; the objective is worded in terms of allotting an appropriate share of the court’s resources

Question 28

Tiziana Shoes Ltd (“Tiziana”) have brought a claim against George for the unpaid contract price of a consignment of handmade designer shoes he purchased from them for £100,000. Tiziana claim that George has withheld payment on wholly spurious grounds that the shoes did not meet the specification, as a number of semiprecious gemstones were missing from the heel of each shoe. Tiziana say no such gems were ever ordered and have written evidence to prove this. Recently, and primarily because of George’s failure to pay, Tiziana have experienced cash-flow difficulties and have no assets in their name.
Three months after being served with the claim, George wishes to apply for security for costs. He asks for your advice on the approach the Court will take when determining his application.
In these circumstances which of the following is WRONG?
[A] The Court is likely to have regard to the stage in the proceedings at which George has made his application.
[B] The Court is likely to consider whether Tiziana’s claim is bona fide and not a sham.
[C] The fact that Tiziana’s financial circumstances have been brought about by George’s actions is likely to be a relevant consideration for the Court.
[D] If the Court concludes that Tiziana will be unable to pay George’s costs if ordered to do so it must grant George’s application.

Answer 28

ANSWER
[D] Is wrong and therefore the correct answer. It disregards the Court’s discretion even if a condition for security for costs is met. CPR 25.13.

[A], [B] and [C] are all likely to be relevant considerations for the court in the circumstances. Triplan factors at White Book 2020 25.13.13

Question 29

Susanna was involved in a road traffic accident when the car she was travelling in as a passenger was hit by a car being driven by Martin. Susanna has brought a claim in the County Court for damages for personal injury. Susanna’s solicitors served a witness statement from Dolores when witness statements were exchanged six months’ ago. The trial of the matter is due to take place in two weeks. Dolores informed Susanna yesterday that she is unable to attend the trial due to work commitments.
Susanna wishes to rely upon Dolores’ evidence. What is the best advice to give her?
[A] She can make an application to the Court to rely upon Dolores’ evidence if she serves a hearsay notice.
[B] She must call Dolores to give oral evidence unless the Court orders otherwise or she puts the statement in as hearsay evidence.
[C] She will not be able to rely upon the evidence unless Dolores attends trial to be cross-examined.
[D] She cannot rely upon Dolores’ evidence without the permission of the Court.

Answer 29

ANSWER
[B] She must call Dolores to give oral evidence unless the Court orders otherwise or she puts the statement in as hearsay evidence.
CPR 32.5

Question 30

David is at home studying for exams which he will sit in ten days’ time. His neighbour, Mike, who is aware of David’s impending exams, is renovating his property. The builders are working from 8.30am until 8.30pm from Monday to Saturday. The work is very noisy, and is likely to last for another three weeks. Although no damage is being caused to his home, David wishes to apply for an injunction prohibiting the work, so that he can revise in peace. He cannot study elsewhere as he is the sole carer for his grandfather, who lives with him.
You are asked to advise David as to whether he will be successful in obtaining an injunction.
Which of the following is the correct advice to give?
[A] As the balance of convenience is clearly in Mike’s favour, David is unlikely to get an injunction.
[B] When considering the balance of convenience, the Court will consider the likelihood of the claimant succeeding at trial.
[C] David is unlikely to get an injunction because damages would be an adequate remedy for him.
[D] As the Court must seek to preserve the status quo , David is likely to get an injunction.

Answer 30

ANSWER:
[B] When considering the balance of convenience, the Court will consider the likelihood of the claimant succeeding at trial.

[A] Wrong.
[B] Correct.
[C] Wrong.
[D] Wrong.
[WB Vol 2 White Book 2020 15-7 to 15-18]

Question 30

You act for Abigail who is engaged in a dispute with her former business partner which they agreed ought to be resolved by mediation. The subject of the dispute is commercially sensitive and Abigail is concerned about how confidentiality can be maintained, even though there is a confidentiality clause in the mediation agreement.
What is the correct advice to give to Abigail to reassure her about confidentiality in the mediation process?
[A] Should the matter proceed to court, the obligation of confidentiality resting on the parties and the mediator is absolute before, during and after the mediation process and therefore cannot be overridden by the court.
[B] Should the matter proceed to court, the court can only permit evidence of confidential communications made during a mediation if it is necessary to prevent risk of harm to the public.
[C] A duty of confidentiality will apply to all the parties and the mediator throughout the mediation process and after the mediation process has been completed or terminated.
[D] All information given during the mediation, both between the parties and to the mediator, will be confidential and can only be waived with the consent of the parties.

Answer 30

Answer
[C] A duty of confidentiality will apply to all the parties and the mediator throughout the mediation process and after the mediation process has been completed or terminated.
See Jackson ADR Handbook (2nd Edition, 2016) paragraphs 13.49 – 13.58. C is correct as it accurately reflects the basic principle of confidentiality in the mediation process (Jackson ADR Handbook (2nd Edition, 2016) paras. 13.49 – 13.52).

A is incorrect as the obligation of confidentiality is not absolute (Jackson ADR Handbook (2nd Edition, 2016) para. 13.54). B is incorrect as there are other circumstances where the duty of confidentiality can be overridden (Jackson ADR Handbook (2nd Edition, 2016) paras. 13.54 – 13.58). D is incorrect as confidentiality must be waived by the mediator as well as by the parties (Jackson ADR Handbook (2nd Edition, 2016) para.13.54).

Question 31

Megan (aged 16) seeks compensation from Alpha Holidays Ltd (“AH”) after contracting food poisoning following an all-inclusive holiday. Prior to proceedings, AH admits liability and a settlement of £4,000 is agreed in full satisfaction of any claim for damages between the parties.
You are asked to advise Megan’s solicitors at this stage of the case.
What is the best advice to give to Megan’s solicitors to finalise the agreed settlement of the claim?
[A] They should draft and send a written statement of agreement to AH’s legal representatives.
[B] They should issue proceedings under Part 7 against AH.
[C] They should issue proceedings under Part 8 against AH.
[D] They should arrange for AH to pay the agreed settlement directly to Megan’s litigation friend for investment on her behalf.

Answer 31

ANSWER:
[C] They should issue proceedings under Part 8 against AH.
[A] is incorrect as a child or protected party must have settlement approved by court.
[B] is incorrect as where it is the sole purpose of proceedings to obtain approval of the court, Part 8 is the correct procedure.
[C] is correct. See CPR 21.10(2)(b)(i)
[D] is incorrect as a child or protected party must have settlement approved by court.

Question 32

Sophie is considering bringing a claim for £15,000 against Swan Breweries for breach of contract. She knows Swan Breweries have relevant documents in their office which she would like to inspect before issuing proceedings.
Sophie seeks your advice in relation to the form of order the Court must make if it makes an order for pre-action disclosure.
In addition to advising her that Swan Breweries are required to specify whether the documents are still in their control, and to indicate whether privilege is asserted, what else must the order specify?
[A] The documents or classes of documents that Swan Breweries must disclose.
[B] The documents or classes of documents of which Swan Breweries must provide inspection.
[C] The documents or classes of documents that Swan Breweries must disclose and of which they must provide inspection.
[D] The documents or classes of documents that Sophie wishes to inspect and a timetable for that inspection.

Answer 32

ANSWER
[A] The documents or classes of documents that Swan Breweries must disclose.
[A] CORRECT. This is the exact wording from CPR 31.16(4) which sets out what an order must contain.
[B] Wrong - see CPR 31.16(4)
[C] Wrong - see CPR 31.164 )
[D] Wrong. As with [B] and [C] the wording is not accurate to CPR 31.16.(4) or 31.16(5)

Question 33

Andrew has brought a claim for negligence against James. In accordance with the
Court’s directions, Andrew served a witness statement from Godfrey. At the trial, Andrew decides not to call Godfrey to give oral evidence and does not put in or rely upon his statement as hearsay evidence.
James wishes to rely upon Godfrey’s evidence. What advice should he be given? [A] James may not rely upon Godfrey’s evidence.
[B] Upon application by James, the Trial Judge may direct Andrew to call Godfrey to give oral evidence.
[C] Upon application by James, the Trial Judge may permit James to call Godfrey to be cross-examined on the contents of his statement.
[D] James may put Godfrey’s witness statement in as hearsay evidence and does not need the Court’s permission to do so.

Answer 33

ANSWER
[D] James may put Godfrey’s witness statement in as hearsay evidence and does not need the Court’s permission to do so.
Explanation
[A]-[C] are wrong as James may rely upon the evidence and need not make application – see CPR 32.5(5)
[D] CPR 32.5(5) provides that if a party who has served a witness statement does not call the witness to give evidence at trial; or put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence.

Question 34

Alison was injured when she was knocked over by Hannah, who was riding a quad bike on a country lane outside Alison’s house. Alison brought a claim against Hannah in the County Court for damages for personal injuries. Hannah filed her defence within the relevant time period. Following an apology from Hannah, and a promise that she will sell her quad bike, Alison discontinued the claim. Two months later Alison discovered that the original incident had also caused damage to her garden fence. Alison wishes to make another claim against Hannah in respect of that property damage.
What is the correct advice to give Alison regarding the further claim?
[A] She should make another claim against Hannah and does not need permission from the Court to do so.
[B] She should make an application within 21 days to set aside the notice of discontinuance in relation to the first claim and add the further claim to it.
[C] She cannot make another claim against Hannah unless the Court first gives permission.
[D] She cannot make another claim against Hannah in respect of the property damage as she has discontinued a previous claim in respect of the accident.

Answer 34

ANSWER
[C] She cannot make another claim against Hannah unless the Court first gives permission.
[A] incorrect as she needs the permission of the court.
[B] incorrect as only the defendant can set aside the discontinuance notice. CPR 38.4
[C] correct. CPR 38.7. She needs the permission of the court.
[D] incorrect as she needs the permission of the court.

Question 34

Annabel works as an engineer maintaining industrial refrigeration equipment in the freezing rooms of a factory operated by Fast Fruits Ltd (FF). The freezing rooms were maintained at a temperature of -20 degrees centigrade and personal protective clothing was provided. In May 2015, Annabel started to suffer temporary minor tingling and numbness in her fingers and toes and was advised by her doctor that this was a relatively common condition caused by blood vessels narrowing as a response to cold and it could be alleviated by keeping warm. In June 2016, her symptoms worsened, and she developed painful hardening of the skin on her fingers, which was permanent. In February 2018, she discovered that the personal protective clothing provided by FF only operated to protect workers from temperatures of -15 degrees centigrade. In May 2018, her lawyer advised her that she had good prospects of success in a claim in negligence against FF.
Which of the following correctly states the date of knowledge for the purposes of the Limitation Act 1980?
[A] May 2015
[B] June 2016
[C] February 2018
[D] May 2018

Answer 34

ANSWER
[C] February 2018
[A] is wrong because, at this time, there was nothing which suggested Fast Fruits Ltd had acted negligently or in breach of duty and her injury was also not likely to be “significant” within the meaning of s.14(1)(a) and (2).
[B] Is wrong because although her condition could be described as significant by this date, there is still nothing which suggests it was caused by the negligence of her employer.
[C] is correct because, by this date, she knew she had suffered significant injury and that it was attributable in whole or in part to the negligence of Fast Fruits Ltd as she had previously been advised her condition was caused by exposure to cold.
[D] is wrong because knowledge means knowledge in broad terms - you don’t need to have knowledge of the law, or how the case might be put. Knowledge is that which “justifies embarking on the preliminaries to making a claim”, not knowledge that you have a claim or cause of action (see the cases at para 838 White Book 2020 Vol 2)

Question 35

Barbara brings a claim against Kendrick for assault. The claim is allocated to the Multi-Track. Kendrick makes an application to strike out Barbara’s claim. At the hearing of the application, the Judge rules that Kendrick’s application was “fundamentally misconceived”.
The Judge ordered that Barbara’s costs be paid by Kendrick, subject to a detailed assessment on the indemnity basis if not agreed. Nothing else was said about costs at that hearing or in the court order.
The trial has yet to take place.
When can Barbara commence detailed assessment proceedings? [A] 14 days after the order for costs was made.
[B] Immediately after the application to strike out the claim.
[C] Only after the costs of the trial have been assessed.
[D] Only after the conclusion of the proceedings.

Answer 35

ANSWER
[D] only after the conclusion of the proceedings.
[A] This is not correct as the judge made no order under CPR R. 47.1 permitting an earlier detailed assessment than the default under CPR R. 47.1.
[B] This is not correct for the same reason as A.
[C] Is incorrect, as there is no distinction drawn in CPR R. 47.1 between the costs of trial and the costs of any interim applications ordered separately. There may also not be an assessment of the costs of the trial.
[D] Is correct: see CPR R. 47.1: the assessment can only take place on the conclusion of the proceedings.

Question 36

Victoria has brought proceedings against her former accountants, Felton & Hall
(“F&H”), seeking damages for professional negligence. Her case is based on alleged failures by F&H to identify errors in the accounting records of a business she bought from Stephen. Victoria and F&H have exchanged and served lists of documents in accordance with standard disclosure requirements.
Although F&H disclosed a large number of documents, these did not include any documents showing the work undertaken when analysing Stephen’s accounting records. You have advised Victoria to make an application for specific disclosure.
Victoria asks you to advise upon her application.
Which of the following is correct advice to give?
[A] Her application is likely to succeed. The order may require F&H to serve a supplementary list of documents, including the accounting records but they cannot be required to conduct a further search for the accounting records.
[B] Her application will succeed provided it is made promptly and it is possible that potentially relevant material has not been disclosed
[C] Her application is likely to succeed because the duty of disclosure is an ongoing one and continues during proceedings.
[D] Her application is likely to succeed because the documents showing F&H’s analysis of Stephen’s accounting records should have been disclosed to comply with their standard disclosure obligations.

Answer 36

ANSWER
[D] Her application is likely to succeed because the documents showing F&H’s analysis of Stephen’s accounting records should have been disclosed to comply with their standard disclosure obligations.
[A] Wrong. 31.12 An order can require a party to carry out a search.
[B] Wrong. White Book 2020 31.12.2 The court will exercise its discretion taking into account all the circumstances of the case and the overriding objective.
[C] Wrong. 31.11 and 31.12 There is an ongoing duty of disclosure but this is not why the application is likely to succeed.
[D] Correct. 31.12, White Book 2020 31.12.1-31.12.2

Question 36

Laura was horse-riding at a riding school. She fell off her horse and broke her arm and leg. She considers that the accident was caused by the riding school’s negligence and wants to issue proceedings to obtain damages for her personal injuries.
In which Court should the claim be issued?
[A] As this is a personal injury claim, it must be issued in the County Court if the value of the claim is less than £50,000.
[B] If this claim is expected to be worth more than £25,000, the proceedings must be issued in the High Court.
[C] This is a personal injury claim and therefore proceedings may not be started in the High Court whatever the value of the claim.
[D] If this claim is worth between £25,000 and £50,000, there is a choice as to whether to issue in the County Court or the High Court.

Answer 36

ANSWER
[A] As this is a personal injury claim, it must be issued in the County Court if the value of the claim is less than £50,000.
[A] Correct. CPR7APD.2.2: Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more.
[B] Wrong. This is a personal injury claim and, as such, is governed by CPR 7APD.2.2 and must be commenced in the County Court if the value is under £50,000.
[C] Wrong. Personal injury claims of over £50,000 may be started in the High Court (CPR 7APD.2.2).
[D] Wrong. There is no choice here. See CPR 7APD.2.2.
[7APD.2]

Question 37

Brian has brought a claim in the County Court against his former employer for damages for personal injuries suffered as a result of an accident at work. Liability for the claim is admitted, but quantum is in dispute. Brian’s claim includes a claim for past and future loss of earnings. Two months before the trial of the claim, the parties exchanged witness statements in accordance with directions made by the Court. Ten days before the trial, Brian found a new job.
On the first morning of the trial, Brian is called to give evidence. His barrister makes an oral application to the Court to permit Brian to answer questions in examinationin-chief about his new job, and to amplify his witness statement as to the circumstances of the accident.
What direction is the Court most likely to make in relation to Brian’s application?
[A] To refuse the application because it ought to have been made in writing in advance of the trial.
[B] To refuse the application on the basis that Brian’s barrister will, if necessary, be able to ask questions in re-examination as to his new job and the circumstances of the accident.
[C] To permit Brian to answer questions from his barrister about his new job but refuse to permit him to amplify his statement in relation to the circumstances of the accident.
[D] To permit Brian to answer questions from his barrister about his new job and to amplify his witness statement as to the circumstances of the accident.

Answer 37

ANSWER
[C] To permit Brian to answer questions from his barrister about his new job but refuse to permit him to amplify his statement in relation to the circumstances of the accident.
CPR 32.5 (3) and (4)

Question 38

Judith intends to bring a Part 8 claim against her brother, Horace, because they disagree on the correct interpretation of a deed of trust, executed by their late mother, of which they are both beneficiaries.
Pre-action correspondence has made clear that the only issue in dispute between them is a single question of construction of the deed, although there are some background matters, not themselves in dispute, that might be relevant to the correct construction of the deed.
What, if any, evidence should Judith file and when?
[A] Judith need file no evidence as there are no facts in dispute.
[B] Judith should issue and serve a claim form and particulars of claim, with a copy of the deed attached.
[C] Judith should file a witness statement with her claim form, exhibiting the deed and giving any evidence relevant to the issue in dispute.
[D] Judith should attach a copy of the deed to the claim form and subsequently file a witness statement dealing with all of the matters in dispute in accordance with directions given by the court at the first (or a subsequent) Case Management Conference.

Answer 38

ANSWER:
[C] Judith should file a witness statement with her claim form, exhibiting the deed and giving any evidence relevant to the issue in dispute.
[C] is correct because, in a Part 8 claim, the claimant is required to file all of her evidence with the claim form: see CPR R. 8.5(1).
Either [B] or [D] might be appropriate for a Part 7 claim but are not appropriate for a Part 8 claim. See answer for C above.
[A] is wrong because the court will need evidence to decide the case even if the evidence is of facts which are not in dispute (as is made clear by the question); the Part 8 claim form will be very brief and will not set out the facts in full, unlike a Part 7 claim form.

Question 39

“Chickens R US” (CRU) is in dispute with one of its franchise holders, Olive, over the branded uniform to be worn to work by CRU employees. Olive has been deviating from the terms of the franchise agreement and is allowing her employees to dress in their own clothes. CRU believes this has undermined, and is continuing to undermine, its brand. The parties attempt ADR before proceedings are commenced and, in correspondence marked “without prejudice”, Olive offers £ 10,000 in settlement and agrees to adhere to the terms of the franchise agreement and ensure that all employees wear the CRU branded uniform. This offer is accepted by CRU and the sum of £ 10,000 is paid by Olive.
One month later, it is brought to the attention of CRU that Olive is again allowing her employees to wear their own clothes whilst working at her CRU franchise. CRU wishes to commence proceedings and bring to the court’s attention the agreement and the terms of the settlement contained in the without prejudice correspondence.
Which of the following is correct advice to give CRU in the circumstances?

[A] CRU cannot refer the court to the without prejudice correspondence as any oral or written communications passing between parties made in an attempt to settle the dispute will be protected from disclosure in subsequent proceedings between the same parties and the same subject matter.

[B] CRU can refer the court to the without prejudice correspondence in order to establish that settlement was reached and the terms of that settlement or to determine the proper interpretation and construction of those terms.

[C] CRU cannot refer the court to the without prejudice correspondence, as although it would evidence the terms of settlement, this settlement was reached prior to the commencement of proceedings and is therefore inadmissible.

[D] CRU can refer the court to the without prejudice correspondence, as long as Olive agrees to waive the privilege over it as privilege is joint and cannot be waived by CRU alone.

Answer 39

B is the correct answer. See Jackson ADR Handbook (2nd Edition, 2016); paragraph 5. 25 as one of the exceptions where without prejudice correspondence is admissible. A is wrong as although it represents clearly the principle surrounding WP correspondence (as set out at paragraph 5. 18 of the Jackson ADR Handbook (2nd Edition, 2016)) it does not allow for the exception on our facts. C is wrong, as WP correspondence can still be referred to in this exceptional circumstance whether it was made prior to or during proceedings (as set out at paragraph 5. 18 of the Jackson ADR Handbook (2nd Edition, 2016)).
D is wrong as although it is correct to state that privilege is joint (as set out at paragraph 5. 20 of the Jackson ADR Handbook (2nd Edition, 2016)), it can be waived by one party when one of the exceptions applies.

Question 40

Craig has been unsuccessful at trial against Mary in a claim for breach of contract for the supply of goods. The case was brought in the County Court, allocated to the Multi-Track and tried by Circuit Judge Evans. Craig wishes to appeal, and has received the necessary permission from the Judge on the basis that an important point of law has been raised.
Which Court or Judge will hear the appeal? [A] High Court Judge.
[B] The Divisional Court of the Queen’s Bench Division.
[C] The Court of Appeal.
[D] A single Lord Justice of Appeal.

Answer 40

ANSWER
[A] High Court Judge
[A] Correct [B] Wrong.
[C] Wrong.
[D] Wrong.
CPR 52APD4 para 3.5, table 1

Question 41

Carola has brought a claim against Dean for £12,000, which is the price of goods she had sold and delivered to Dean. Dean has filed a defence and counterclaim, seeking to set off a counterclaim for damages said to amount to £18,000, based on an allegation that the goods were not of satisfactory quality. The District Judge has allocated the claim to the Fast-Track and made a direction for standard disclosure by lists of documents. One of Carola’s other customers, Edward, bought the same type of goods from her as Dean. Edward wrote to her stating that the goods he received had similar defects.
Does Carola need to disclose Edward’s letter and if so, why? [A] Yes, because it could adversely affect her case.
[B] Yes, because she is obliged to disclose documents which may lead Dean on a train of inquiry.
[C] No, because standard disclosure is limited to documents which support a party’s case.
[D] No, because the document is one to which litigation privilege would apply.

Answer 41

ANSWER
[A] Yes, because it could adversely affect her case.
[A] Correct. This question concerns the scope of standard disclosure as set out in CPR, r. 31.6.
[B] Wrong. Answer B, which deals with train of inquiry documents, is wider than the categories set out for standard disclosure and is therefore wrong.
(Commentary White Book 2020 31.6.3)
[C] Wrong. Answer C is too restrictive. Standard disclosure goes beyond the documents on which a party relies and includes the categories set out in r. 31.6(b), which include documents which adversely affect the disclosing party’s own case (r. 31.6(b) (i)).
[D] Wrong. Not protected by litigation privilege. Necessary to look at the sole or dominant purpose that the doc was created. Not created for the purposes of the litigation [White Book 2020 31.3.9]

Question 42

Jessica has brought a claim in the County Court against Beatrice for personal injuries in the sum of £ 270,000, which were alleged to have been suffered when she was assaulted by Beatrice. Jessica claims that she suffered a serious head injury as a result of the assault.
The claim was allocated to the multi – track and at the costs and case management hearing, the court gave permission for the parties’ request to obtain expert evidence from a single joint expert, a neurologist, to provide an opinion on Jessica’s head injury. The report was sent to both parties by the expert last week. Beatrice was unhappy with the expert’s conclusion and raised written questions. Despite receiving an answer to those questions, Beatrice remained dissatisfied with the expert evidence for a number of reasons, and because of the amount of the claim, asks your advice about the likely approach of the Court if she applies for permission to instruct a further expert.
Which of the following statements is correct in relation to the Court’s likely approach?
[A] As a single joint expert was used to provide the first report and has answered questions about her conclusions, the court will not give permission for a second report as the single joint expert could be cross examined at trial.
[B] The court is likely to give Beatrice permission to obtain further expert evidence if her reasons are not fanciful and may require both experts to meet to consider the issues and any possible agreement between them.
[C] The Court may not give permission to obtain further expert evidence as Beatrice had originally agreed to the appointment of a single joint expert.
[D] The court will disregard the value of the claim when deciding whether to give permission for further expert evidence and will not give permission for a second report.
Answer:
[B] The court is likely to give Beatrice permission to obtain further expert evidence if her reasons are not fanciful and may require both experts to meet to consider the issues and any possible agreement between them.
[B] is the correct answer and most accurately reflects the guidance for obtaining further expert evidence at 35.7.4 of the White Book 2020.
* (D (A Child) v Walker [2000]) White Book 2020 35.7.4 à where a dissatisfied party’s reasons were not fanciful such permission should be granted at least where the parties have agreed to give single joint instructions to the expert and especially where a substantial sum was involved. Lord Woolf’s guidance at 35.7.4 of the White Book 2020 refers to the need for the experts to meet before a decision is taken as to what evidence can then be used at trial.
* The commentary at 35.7.4 of the White Book 2020. also goes on to say that questions to an expert may clear up the disagreement of the party – but does not state that as a result, permission could not be granted to instruct a second expert (hence A is wrong). C is wrong, as the guidance in Daniels and Walker suggests that the court is more sympathetic to allowing further evidence if the parties had agreed to instruct a single joint expert. D is wrong, as the commentary at 35. 7.4 of the White Book 2020 expressly states that if a substantial sum is involved in the claim, then that will be a relevant factor for the court

Answer 42

Answer:
[B] The court is likely to give Beatrice permission to obtain further expert evidence if her reasons are not fanciful and may require both experts to meet to consider the issues and any possible agreement between them.
[B] is the correct answer and most accurately reflects the guidance for obtaining further expert evidence at 35.7.4 of the White Book 2020.
* (D (A Child) v Walker [2000]) White Book 2020 35.7.4 à where a dissatisfied party’s reasons were not fanciful such permission should be granted at least where the parties have agreed to give single joint instructions to the expert and especially where a substantial sum was involved. Lord Woolf’s guidance at 35.7.4 of the White Book 2020 refers to the need for the experts to meet before a decision is taken as to what evidence can then be used at trial.
* The commentary at 35.7.4 of the White Book 2020. also goes on to say that questions to an expert may clear up the disagreement of the party – but does not state that as a result, permission could not be granted to instruct a second expert (hence A is wrong). C is wrong, as the guidance in Daniels and Walker suggests that the court is more sympathetic to allowing further evidence if the parties had agreed to instruct a single joint expert. D is wrong, as the commentary at 35. 7.4 of the White Book 2020 expressly states that if a substantial sum is involved in the claim, then that will be a relevant factor for the court.

Question 43

You are instructed in a professional negligence claim in which experts’ reports have been served. You are asked by your instructing solicitor by when, in the absence of the court’s permission or the other party’s agreement, she must put any written questions about the opposing expert’s report.
Which of the following is correct?
[A] Within 7 days of service of the opposing expert’s report.
[B] Within 14 days of service of the opposing expert’s report.
[C] Within 21 days of service of the opposing expert’s report.
[D] Within 28 days of service of the opposing expert’s report.

Answer 43

ANSWER
[D] Within 28 days of service of the opposing expert’s report
See CPR Part 35.6(2)(b) and for which reason options [A]-[C] are incorrect

Question 44

Rajinder brought a claim against Pauline, arising out of a breach of contract.
Rajinder claims that he is owed £50,000. Pauline denies that she owes anything. You represent Rajinder. Pauline had previously made a Calderbank offer for £15,000 inclusive of costs. Your advice was that this should be rejected as it was too low. You further advise that a Part 36 offer in the sum of £35,000 should be made. This advice was acted on but the offer was not accepted.

The parties agreed to take part in a mediation. Pauline stated in the opening phase of the mediation that she viewed the purpose of mediation as a means of persuading Rajinder that he should accept her offer of £15,000 inclusive of costs rather than increasing that offer. Pauline refused to make any offer greater than £17,000 inclusive of costs. This increased offer came at 5pm just before the mediation concluded. In response to this, Rajinder reduced his offer to £25,000 inclusive of costs, but Pauline refused to accept this.
The mediation took place over six hours but no agreement was reached. Rajinder is disappointed that the matter is proceeding to trial. He believes that Pauline’s behaviour has been unreasonable as she has not entered mediation in good faith.
Can Pauline’s conduct in relation to the mediation be taken into account in the assessment of costs at the end of any trial and, if so, why?

[A] Yes, because it amounts to unreasonable conduct on the part of Pauline.

[B] Yes, because there is evidence that Pauline was not mediating in good faith.

[C] No, because mediations are confidential.

[D] No, because Pauline’s conduct was not unreasonable as she made an improved offer.

Answer 44

[C] No, because mediations are confidential.

A. This is not correct: mediations are invariably undertaken on the basis of strict confidentiality agreements that the courts are willing to uphold. Thus, the court will not permit evidence of what passed at a mediation to be adduced at all, whether on the question of costs or otherwise.
B. This is incorrect for the same reason as [A].
C. This is correct: see under [A] and see Jackson ADR Handbook (2nd Edition, 2016)
13.39
D. This is incorrect: whether another offer was made is not relevant to the strict confidentiality attaching to mediation agreements.  

Question 45

Towards the end of a hearing, the Judge indicates that he intends to make an order against your client, restraining her from assaulting or harassing her neighbour. Your client is present at Court. She asks from which day the order will take effect.
What is the correct response to give her? [A] From the day when it is made.
[B] From the day when it is sealed.
[C] From the day when it is served.
[D] From the day when the time for appealing has expired.

Answer 45

ANSWER
[A] From the day when it is made.
[A] Correct. Pursuant to CPR r. 40.7 a judgment or order takes effect from the day when it is given or made unless the Court specifies a later date. The order would be enforceable immediately on the basis of the client having notice of its terms by being present in Court.
[B] Wrong. It states that the order would take effect from the day when sealed.
[C] Wrong. It states that the order would take effect from the day when served.
[D] Wrong. It states that the order would take effect from the day when the time for appealing has expired.

Question 46

Eleanor owns two adjacent shops. She runs an aromatherapy business in one shop.
She leases the other shop to Harry who runs the shop as a newsagent. It is a term of Harry’s lease that he will not prepare or sell any cooked food from the shop premises. However, he has begun cooking and selling fried snacks, and their smell enters Eleanor’s shop. Eleanor believes the smell has caused her to lose customers and the resulting stress has adversely affected her health.
Eleanor has issued a claim for breach of covenant against Harry. She has also applied for an interim injunction to restrain him from cooking in the shop.
What is the Court likely to do at the hearing of the application?
[A] Dismiss the application because Harry has not yet filed a defence.
[B] Grant the application if, amongst other things, Eleanor can establish there is a serious issue to be tried and the balance of convenience falls in her favour.
[C] Grant the application on the basis that Eleanor has a strong prima facie case against Harry
[D] Dismiss the application as damages are likely to be an adequate remedy for Eleanor.

Answer 46

ANSWER:
[B] Grant the application if, amongst other things, Eleanor can establish there is a serious issue to be tried and the balance of convenience falls in her favour.
[A] Wrong. An interim injunction can be and usually is sought prior to the service of a defence.
[B] Correct. Interim injunction applications should normally be decided under American Cyanamid. While there are recognised exceptions, this does not fall within them.
[C] Wrong. This is one of the criteria for a search order and is not the basis on which the court is likely to grant the application in these circumstances.
[D] Wrong. Given the claim that Eleanor’s health has been affected, damages are unlikely to be an adequate remedy.
[WB White Book 2020 Volume 2, Section 15, para 15-7.]