UNIT 3 - Statements of Case and Interim Applications Flashcards
A company (the claimant) owns an office building on a business park. When making a delivery of office supplies to the claimant, the defendant loses control of his van and crashes into the reception causing extensive damage. The cost of rebuilding has been assessed as £32,500. 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 should set out the basis of its entitlement to interest, but need not calculate the amount owing.
D) The claimant must precisely calculate the amount of interest which has accrued up to the date of proceedings.
E) 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.
CORRECT ANSWER C - 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. Although 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 D and E are both wrong.
The defendant is served with proceedings for damage caused to the claimant’s reception building when his van collided into it. He denies liability and files and serves a defence alleging that the reason he lost control of the van was because there were shards of glass on the driveway approaching the reception, which caused a puncture to the front tyre. The defendant alleges that he was a visitor within the meaning of the Occupiers’ Liability Act 1957 and that the claimant failed in its statutory duty to safeguard him from danger and a foreseeable risk of damage to his property. He also makes a claim for the cost of repair to his van. This is disputed by the claimant.
Which of the following statements correctly describes how the defendant should approach drafting his statements of case?
A) When drafting his defence, the defendant need only admit facts that he accepts and deny those which he disputes.
B) The defendant should adopt a structured approach to drafting his defence, but any facts missed are deemed to have been denied.
C) The defendant should include a counterclaim with his defence if he wishes to claim for the repair of his van.
D) When drafting a counterclaim, the defendant should include all the relevant facts even if these have already been set out in the defence.
E) The counterclaim need not be verified by a statement of truth as it is part of the defence.
CORRECT ANSWER C - Option A is wrong because there is a third option – that of a non- admission and this applies to those facts of which the defendant has no knowledge. Option B is wrong as any facts missed are deemed to be admitted. Option D is also wrong as there is no need to include facts that have already been set out in the defence and the first paragraph will simply state that the relevant paragraphs are repeated. Option E is wrong because all statements of case must be verified by a statement of truth.
The claimant has issued proceedings against the defendant, who files and serves a defence and counterclaim in response. However, the claimant is unable to respond effectively because the contents are lacking in clarity.
Which of the following statements provides the best advice as to the action the claimant should take first?
A) The claimant should write to the defendant to request further information on the defence and counterclaim.
B) The claimant should make an application to the court to request further information in relation to the defence and counterclaim.
C) The claimant should apply for permission from the court as they cannot make an application for further information on the defence and counterclaim without this.
D) The claimant does not need to respond to the counterclaim as they are deemed to deny it.
E) The claimant should file a reply to the defence and a defence to the counterclaim based on the information that has been provided by the defendant.
CORRECT ANSWER A - Under CPR Part 18, the client may request further information from their opponent to clarify any matter that is in dispute or to obtain additional information in relation to any such matter. Before applying to the court, the claimant should write to the defendant to request this – hence, option B is wrong. Option C is wrong as the claimant does not need the permission of the court to request further information on statements of case.
Option D is wrong as the facts state that the claimant disputes the counterclaim and if they do not file and serve a defence, the defendant can enter judgment in default for this aspect. Option E is not the best advice because responding to the defence and counterclaim where the issues are unclear would be contrary to the overriding objective as the statements of case would almost certainly need amending at a later stage.
The defendant has a contract with a hotel to landscape their gardens ready for the official opening on 14 May. They order 2,000 plants and shrubs (the Order) from the claimant
for £18,500. However, the Order does not arrive until 20 May (after the event) and so the defendant refuses to pay the invoice. The claimant issues proceedings in the County Court for the monies due and the defendant responds with a defence stating: ‘We dispute the payment. The Order arrived too late so we could not fulfil our contract with the hotel. The terms of the contract were agreed orally at a meeting where our sales director made it clear to the claimant’s facilities manager that the plants and shrubs had to be delivered by 7 May to allow time for planting and that time was of the essence.’ The claimant applies to the court for an order for summary judgment.
Which of the following answers best describes the likely outcome of the claimant’s application for summary judgment?
A) The claimant will succeed in its application because the defendant’s defence does not provide sufficient detail for the court to determine the matter.
B) The claimant may fail in their application because the need to hear oral evidence from witnesses to determine whether time was of the essence is a compelling reason as to why the matter should proceed to trial.
C) The claimant will fail in their application but only because the information provided in the defence is sufficient to demonstrate that the defendant has a real prospect of successfully defending the claim.
D) The claimant may fail in their application because the matter is too complex and technical to be dealt with at a summary judgment hearing and this is a compelling reason why the matter should proceed to trial.
E) The court is likely to make a conditional order as it is possible but not probable that the defence will succeed.
CORRECT ANSWER B - as a central issue is whether the contract contained an express term
that time was of the essence and the judge will need to hear oral evidence from the sales director and the facilities manager who were at the meeting where the terms were agreed to determine this issue. This is a compelling reason why the matter should proceed to trial.
Option A is wrong because there is no guarantee the claimant ‘will’ succeed in their application. Option C is wrong as there are two grounds upon which the court could refuse to grant summary judgment. In addition to deciding that the defendant has a real prospect of defending the claim, the court could also refuse the claimant’s application on the basis of compelling reasons (as above).
Option D is wrong because the matter is neither complex nor technical in nature. Option E is not the best answer because of the reasons above, but also the defendant’s defence has a greater than ‘possible’ chance of success on the limited evidence available.
The company is a pharmaceutical corporation and they have just developed a vaccine for a coronavirus that is sweeping the globe. One of their research scientists is offered significant financial incentives to work for a competitor in producing their own vaccine. The scientist leaves the company and begins work immediately for the competitor. The company is concerned that the scientist 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 scientist downloaded material onto a mobile device and also that they may be moving to the United States to work in a laboratory 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 scientist 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 scientist from using the confidential information that they have obtained.
C) The company should apply for a search order and a freezing injunction against the scientist.
D) The company should apply for an interim injunction to prevent the scientist from using the confidential information that they have obtained together with a search order.
E) The company should apply for an interim injunction to prevent the scientist from using the confidential information that they have obtained, a search order and a freezing injunction.
CORRECT ANSWER E - The company should apply for an interim injunction to prevent the scientist from using the confidential information they have obtained, a search order to compel the scientist to allow their premises to be searched for the mobile device and a freezing injunction to prevent them from moving their assets to the United States. As all three interim remedies are possible on the facts, options B, C and D are not the best ones.
Whilst option A is a correct course of action, waiting for the trial would mean the damage was done – the competitor would have developed and sold the vaccine 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.
CORRECT ANSWER D - 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.
Which of the following about the statement of truth in a statement of case is correct?
A) If the statement of truth is signed by the party’s legal representative it will refer to the party’s belief that the facts stated in the document are true and not any belief being expressed by the legal representative.
B) If the statement of truth is signed by the party’s legal representative, it must be signed in the name of their firm or employer and not their own name.
C) Only a partner can sign a statement of truth on behalf of a partnership.
D) A statement of truth must be in English.
E) Only the chief executive can sign a statement of truth on behalf of a company.
CORRECT ANSWER A - Where the statement of truth is signed by the party’s legal representative it will refer to the party’s belief that the facts stated in the document are true. So, the statement of truth should read, “The [party] believes that the facts stated in this [document being verified] are true. [The party] understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.” By way of information, details of the wording and other requirements for statements of truth can be found in CPR rule 22 and PD 22.
B is wrong. A legal representative who signs a statement of truth must sign in their own name and not that of their firm or employer.
C is wrong. Any of the partners or a person having the control or management of the business may sign for a partnership.
D is only correct if the witness’s own language is English. If the witness’s own language is not English, then the statement of truth must be in their own language.
E is wrong. A person holding a senior position such as a director, secretary, chief executive or the treasurer may sign on behalf of a company.
Which of the following concerning the content of a statement of case is correct?
A) The statement of case should be divided into paragraphs. Paragraphs and sub-paragraphs may be demarcated by bullet points, numbering or lettering.
B) All numbers, including dates, in a statement of case must be expressed in words.
C) A statement of case prepared by a solicitor must be signed by that solicitor in their own name.
D) The main purpose of particulars of claim is to state concisely the material facts on which the claimant relies. The claimant should state all facts necessary for the purpose of showing a complete cause of action.
E) A claimant who fails to file and serve a reply to the defence is assumed to have admitted all the matters raised in the defence.
CORRECT ANSWER D - The main purpose of particulars of claim is to state concisely the material facts on which the claimant relies. This requires comprehensive planning of the contents of the document. For example, a defendant’s knowledge of a material fact that demonstrates a particular item of damage claimed is not too remote could easily be overlooked but this is often relevant where loss of a particular contract and/or profits is claimed.
A is wrong. A statement of case must be divided into numbered paragraphs.
B is wrong. A statement of case must have all numbers, including dates, expressed as figures.
C is wrong. A statement of case prepared by a solicitor must be signed in the name of the solicitor’s firm.
E is wrong. A claimant who does not file a reply to the defence is not taken to admit the matters raised in the defence. A reply should normally be limited to stating any new facts the claimant intends to prove to defeat the defence. It is important to remember that filing a defence to a counterclaim is essential in so far as the defendant may otherwise obtain default judgment. The defence to counterclaim should be drafted in exactly the same way as an ordinary defence. Where a claimant files both a reply and defence to counterclaim, they should usually be included in the same document which bears that heading with the two sub-headings thereafter.
TRUE OR FALSE: a defence only has to state which allegations in the particulars of claim are denied and which are admitted?
FALSE - By way of information, CPR rule 16.5(1) provides that the defence must state which allegations are denied; which allegations are not admitted; and which are admitted. It is important to note that where a defendant denies an allegation, they must state their reasons for doing so and their own version of events, if different from that given by the claimant. A non-admission is made where the defendant has no knowledge of the matter. Only allegations which are denied or not admitted must be proved by the claimant.
Which of the following concerning statements of case and a claim for interest is correct?
A) In a breach of contract case proceeding in the High Court, interest can only be claimed under section 35A of the Senior Courts Act 1981.
B) In a debt claim, interest can only be claimed under the Late Payment of Commercial Debts (Interest) Act 1998.
C) Where a claim is for money, the following details must be set out: the percentage rate at which interest is claimed; the date from which it is claimed; the date to which it is calculated (and this must not be later that the date on which the claim form is issued); the total amount of interest claimed to the date of calculation and the daily rate of interest claimed after that date.
D) Where the Late Payment of Commercial Debts (Interest) Act 1998 applies, the claimant is also entitled to a small amount of statutory compensation for the inconvenience of having to recover the debt.
E) In a case proceeding in the County Court, interest can only be claimed under section 69 of the County Courts Act 1984.
CORRECT ANSWER D - The Late Payment of Commercial Debts (Interest) Act 1998 provides for payment of a fixed sum of compensation for late payment, the amount varying according to the size of the debt, in addition to the award of interest.
A is wrong. Interest might also be claimed under any relevant contractual provision or under the Late Payment of Commercial Debts (Interest) Act 1998 if that applied.
B is wrong. Various debts do not fall within the Late Payment of Commercial Debts (Interest) Act 1998. In those circumstances, interest could be claimed under section 35A of the Senior Courts Act 1981 in High Court proceedings or section 69 of the County Courts Act 1984 in County Court proceedings.
C is wrong. The details set out only apply to a claim for a specified amount of money, not where an unspecified amount is being claimed.
E is wrong. Interest might also be claimed under any relevant contractual provision or under the Late Payment of Commercial Debts (Interest) Act 1998 if that applied.
TRUE OR FALSE:
the only statute that must be cited in a statement of case is the Limitation Act 1980?
FALSE - There are some other statutes that must be cited. For example, personal injury claims made under the Fatal Accidents Act 1976 must cite the Act. A claimant relying on evidence under section 11 of the Civil Evidence Act 1968 of a defendant’s conviction must state that. An occupiers’ liability claim will cite the relevant statute. As you saw from Question 4, when claiming interest under a statute (Late Payment of Commercial Debts (Interest) Act 1998, the Senior Courts Act 1981 and the County Courts Act 1984) it will be cited.
TRUE OR FALSE:
an expert’s report should never be attached to a statement of case?
FALSE - Under the Civil Procedure Rules, a party can attach to a statement of case any document they consider necessary to their claim or defence. This provision ensures that the court has the fullest possible knowledge of relevant facts from the outset. So, if a party has voluntarily disclosed a document pre-action, or has received a document from the other side that assists their case, and it is admissible, then it may be appropriate to attach a copy. But this should only be done where the document is obviously of critical importance and necessary for a proper understanding of the statement of case.
Note that in a personal injury claim, the claimant must attach to their particulars of claim a schedule of details of any past and future expenses and losses which they claim. The defendant should then include in or attach to their defence a counter-schedule. Where the claimant is relying on evidence from a medical practitioner about their personal injuries, they should attach it to the particulars of claim. If the defendant has obtained their own medical report, they should attach it to the defence.
But should any other sort of expert’s report be attached to a statement of case? Arguably only if the court has already given permission for the party to rely on that expert. But that’s most unlikely at this stage as the court will not normally have considered expert evidence. This does not mean that material facts from an expert’s report should not be included. Indeed, in many cases, the factual basis of causation and breach can only be addressed from an expert’s viewpoint. But, just as the report should not be attached, equally the name of the expert and date of the report should not be included. You are only looking to include the relevant material facts that constitute the claimant’s claim or defendant’s defence.
Which of the following about making an interim application is correct?
A) An application notice only has to state what order the applicant is seeking.
B) An application notice must always be served on the respondent.
C) An application notice must include a time estimate as to how long the hearing of the application is likely to last.
D) The applicant and respondent must produce written evidence by way of a witness statement or affidavit at the interim hearing.
E) The applicant must always attach a draft of the order sought.
CORRECT ANSWER C - An application notice must include a time estimate as to how long the hearing of the application is likely to last. Unless the application will be made without notice, the respondent should be consulted about the time estimate. The court must be given a realistic time estimate so that the court can allocate an appropriate amount of time for the hearing.
A is wrong. An application notice must state what order the applicant is seeking and briefly explain why the applicant is seeking the order.
B is wrong. An application may be made without serving an application notice, if, for example, there is exceptional urgency or where the overriding objective of dealing with cases justly and at a proportionate cost is best furthered by doing so.
D is wrong. Whilst it is usual for the applicant and respondent to rely on written evidence by way of a witness statement or affidavit at the interim hearing, the applicant may rely on a statement made with a statement of truth set out on the application notice and either party may rely on its statement of case.
E is wrong. In very simple applications there is no need to attach a draft order.
Which of the following about summary judgment is correct?
A) The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if it considers that the claimant has no reasonable prospect of succeeding on the claim or issue; or that defendant has no reasonable prospect of successfully defending the claim or issue; and there is no other good reason why the case or issue should be disposed of at a trial.
B) If a claimant applies for summary judgment before a defence is filed, the defendant need not file a defence before the hearing of the summary judgment application.
C) If at the hearing the court determines that it is possible that a claim or defence may succeed but improbable that it will do so, then the court will dismiss the application.
D) A summary judgment hearing is the equivalent of a trial.
E) The burden is on the respondent to show that summary judgment should not be granted.
CORRECT ANSWER B - Unless the court otherwise orders, a claimant cannot apply for summary judgment until the defendant has filed an acknowledgment of service or served a defence. So, if the claimant applies for summary judgment immediately after the defendant has filed an acknowledgment of service, the defendant need not file a defence before the hearing of the summary judgment application. If the application is not granted, the court will then give directions as to the filing and service of the defence.
A is wrong. The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if it considers that the claimant has no real (as opposed to reasonable) prospect of succeeding on the claim or issue; or that defendant has no real (as opposed to reasonable) prospect of successfully defending the claim or issue; and there is no other compelling (as opposed to good) reason why the case or issue should be disposed of at a trial.
C is wrong. If, at the hearing, the court determines that it is possible that a claim or defence may succeed but improbable that it will do so, then the court may make a conditional order, that is an order requiring the respondent to pay a sum of money into court or to take a specified step in relation to its claim or defence, as appropriate. In either case, it will be an unless order i.e. subject to the sanction that its statement of case will be struck out for non-compliance. Although the current version of CPR Part 24 does not refer to the “possible if improbable” test, it would seem likely that the practice of making a conditional order will continue in these circumstances.
D is wrong. A summary judgment hearing is not a trial.
E is wrong. The burden is on the applicant to show that summary judgment should be granted.
Which of the following about an interim payment is correct?
A) The claimant may apply for an order for an interim payment as soon as the period for filing an acknowledgment of service applicable to the defendant against whom the application is made has started.
B) The claimant may not make more than one application for an order for an interim payment.
C) The court may make an order for an interim payment where it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment.
D) The court must not order an interim payment of more than one third of the likely amount of the final judgment.
E) The trial judge will be told about any interim payment orders at the beginning of a trial.
CORRECT ANSWER C - It is one of the grounds on which an order may be made. By way of information, interim payments are dealt with in CPR rules 25.6 to 25.9 and PD 25B.
A is wrong. The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.
B is wrong as more than one application can be made.
D is wrong as there is no prescribed cap. The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.
E is wrong. The trial judge will not be told about any interim payment order until after they have determined all issues of liability and quantum, unless the defendant consents.
