UNIT 4 - Case Management and Disclosure of Documents Flashcards
The claimant issues proceedings against the defendant for breach of contract arising from the installation of a heating system in their plant nursery. The claimant claims that, due
to inherent defects within the system, the heating failed to come on at the appropriate temperature on the night of 23 November. As a consequence, the claimant’s entire stock of valuable roses died causing losses of £43,000 and damage to their reputation in the industry. This is disputed by the defendant who submits that the fault lay with the claimant in its operation of the system. Both parties have instructed experts as the heating system is a specialist one and there are technical issues to resolve. The claimant is a multi-national company whereas the defendant is an individual.
Which of the following best describes the approach the court would take when seeking to comply with the overriding objective?
A) The aim of the court is to deal with the case justly and at reasonable cost. As a consequence, the court directs that a single joint expert be appointed to deal with liability.
B) The court must manage cases as best as possible and the parties are required to assist the court in furthering the overriding objective.
C) The court will concentrate entirely on the merits of the case and will have no regard for the difference in status and financial position of the claimant and the defendant.
D) The court will take account of the fact this is a complex breach of contract claim requiring expert evidence and the level of damages sought is £43,000.
E) The court will allocate all the resources the claimant requires to resolve the matter because of the importance of the matter to the claimant.
CORRECT ANSWER D - because when deciding the appropriate approach to the matter, the court will consider the amount of money involved and should also take account of the complexity of the issues.
Option A is wrong because the overriding objective requires the court to deal with cases justly and at ‘proportionate’ cost – not ‘reasonable’ cost. Also, it would be more usual for the parties to instruct separate experts in a case of this value. Option B is wrong because the court must manage cases ‘actively’ rather than ‘as best as possible’ although the second part of the statement is correct.
Option C is wrong as one of the objectives that the court should seek to achieve when dealing with cases is to ensure the parties are on an equal footing with the financial position of each party being a factor. Option E is wrong as the court will allocate ‘an appropriate share of the court’s resources’ to the case and not all the resources the claimant requires. It is, however, correct that the court will take account of the importance of the case to the parties.
The claimant has issued proceedings in the County Court for £24,500 against the defendant. The particulars of claim state that: ‘The claim is for building work provided by the defendant which was sub-standard’. The court provisionally allocates the claim to a track. The defendant completes the directions questionnaire as required and files it at court, but the claimant fails to file their questionnaire.
Which of the following statements best describes how the matter will proceed?
A The court will provisionally allocate the claim to the intermediate track.
B The defendant could apply to strike out the claim on the basis that it discloses no realistic grounds for bringing the claim.
C The court could grant an order that unless the claimant files full particulars of claim setting out their reasons for claiming the damages within seven days of service of the order, the claim will be struck out.
D The court will serve a notice on the claimant requiring them to file the directions questionnaire within seven days failing which the claimant’s statement of case may be struck out.
E If either party fails to comply with any future directions issued by the court, the court will automatically impose a sanction to ensure the trial is not postponed.
CORRECT ANSWER C - Option A is wrong as the amount in dispute is less than £25,000 and so the case will
be allocated to the fast track. Option B is wrong because a claim will be struck out if it has no reasonable (not realistic) prospect of success. Option D is wrong because, in the circumstances described – a claim for money in the County Court – the claimant’s statement of case will be automatically struck out if the claimant does not file its directions questionnaire within seven days.Option E is not an appropriate way forward (and therefore a wrong answer) because the court will not automatically impose a sanction. If a party fails to keep to the directions timetable, the parties should co-operate to ensure they meet certain key dates, such as the case management conference and the trial. However, if a step is missed, the other
A claimant issues proceedings against the defendant, a structural engineering company, for the sum of £340,000 in relation to the negligent construction of a road bridge. The case is allocated to the multi-track and a case management conference is listed. The client telephones for an update and asks for an email to be sent advising them on the litigation process at this stage of the proceedings.
Which one of the following statements correctly describes what might happen at a case management conference?
A) The purpose of the case management conference is to review the steps the parties have taken to prepare the case, check their compliance with any directions the court has made and give directions for the future conduct of the case.
B) At the case management conference, if agreement cannot be reached between the parties, a costs management order will be imposed in every case to ensure that future costs are kept under control.
C) In the multi-track, directions will be tailored to the circumstances of the particular case and will often include a direction that a single joint expert be appointed.
D) The parties must file a costs budget and failure to do so on time will result in the automatic sanction that the defaulting party’s future recoverable costs are limited to 50% of their actual costs (unless relief is obtained from the sanction).
E) If either party has already been sanctioned in their conduct of the litigation, they must apply for relief from that sanction, but that application can only be heard after the case management conference, as the conference can only address directions for the future conduct of the case.
CORRECT ANSWER A - correctly summarises what might happen at a case management conference.
Option B is wrong, as a costs management order will not be imposed in every case. However, such an order will usually be made unless the judge is satisfied that the litigation can be conducted justly and at proportionate cost.
Option C is wrong in that, on the multi-track, it is more common for a judge to grant permission that each party can instruct their own expert. Option D is also wrong. If either party fails to file its costs budget on time, the automatic sanction applied is that the defaulting party’s future recoverable costs will be limited to any court fees that have been paid (unless relief is obtained from that sanction).
Option E is wrong. If either party has already been sanctioned, an application for relief from that sanction will usually be heard at the case management conference, provided the application has been made properly and in good time, and there is time to deal with the application during the conference hearing itself.
A solicitor is conducting proceedings on behalf of a client. The court makes an order for directions and the solicitor writes to the client outlining their standard disclosure obligations.
Which of the following statements should the solicitor make to the client?
A) The court order requires you to carry out an exhaustive search for documents sparing no expense.
B) Once you have listed all of the documents that is the end of your disclosure obligations.
C) If you have lost any documents then that is unfortunate, but there is no need to give me details of these.
D) In due course, I will produce a draft list of documents for your approval. You will need to consider this carefully because you will sign the disclosure statement confirming that you understand your duty to give disclosure and have complied with it. If that statement is wrong, you could be imprisoned for contempt of court.
E) Once the list has been served, that is it and your opponent cannot obtain disclosure of any documents that have been missed.
CORRECT ANSWER D - Option A is wrong because the CPR require a reasonable and proportionate search (not an exhaustive one). Option B is wrong as disclosure is a continuing obligation throughout the proceedings. Documents that have been lost or destroyed must still be disclosed (in Part 3 of the list) so option C is wrong. Option E is wrong because a party who is dissatisfied with their opponent’s disclosure does have options available to them, for example, applying for an order for specific disclosure or to dispute privilege claimed.
A couple issue proceedings for £15,000 against a company for breach of a written contract in relation to the provision of a buffet at their wedding. The couple allege that several of the guests were unhappy that no vegetarian options were provided and additional food had to be purchased for them on the day. The couple send an email to the company making these complaints about the buffet. The company respond by pointing to a checklist that the couple were asked to complete in which the vegetarian option was not ticked. The company deny the food supplied was not in accordance with the terms of the contract. There is no dispute that full payment was made by the couple to the company. During the course of the negotiations, a ‘without prejudice’ letter is sent from the couple’s solicitors to the company offering to accept £10,000 in settlement.
Which of the following best describes the documents that the couple would need to disclose if the court orders standard disclosure?
A) The contract, the proof of payment, the email of complaint, the checklist and the without prejudice letter.
B) The contract, the email of complaint, the checklist and the without prejudice letter.
C) The contract, the email of complaint and the checklist.
D) The contract, the email of complaint and the without Prejudice letter.
E) The checklist and the without prejudice letter.
CORRECT ANSWER B - s the only document that does not need to be disclosed is the proof of payment (and A is wrong for this reason). This is because there is no dispute that full payment was made and so the document does not record any information relevant to the disputed issues between the parties.
Option C is not the best answer – the without prejudice letter should also be disclosed as it falls within standard disclosure. The letter most probably records information upon which the couple will rely as part of their claim, and the fact that the couple will now accept £10,000 is adverse to their claim for £15,000. The effect of a document being marked in this way is that it cannot be shown to the judge at trial but disclosure takes effect between the parties and, in any event, both have seen the letter.
Option D is wrong because the checklist must also be disclosed as it adversely affects the couple’s case and so comes within the definition of standard disclosure. Option E is not the best answer as the couple will want to rely upon the contract as to the disputed issue of the provision of the food as well as the email recording the detail of their complaint that is disputed by the company.
A company manufactures scooters. On testing the finished product, it becomes apparent there is a problem with the brakes. The manufacturing company obtains a report from their quality control department to check the reason, which concludes that the cause may either have been a temporary glitch in the software or a fault with the brakes themselves. The manufacturing company instructs solicitors and issues proceedings against one of its parts suppliers (which supplied the brakes) for breach of contract and to claim damages including loss of profits. The proceedings are defended and the court directs that standard disclosure is given.
Which of the following approaches should the manufacturing company’s solicitors take when completing the list of documents?
A) Any confidential document must be disclosed but may be included in Part 2 of the list.
B) Attendance notes of meetings between the manufacturing company and their solicitors need not be disclosed as they will not be relied on at trial.
C) Instructions to counsel and counsel’s opinion may be disclosed in Part 2 of the list as they fall within the definition of advice privilege.
D) All witness statements obtained must be disclosed in Part 1 of the list of documents.
E) The report from the quality control department is subject to litigation privilege and should be disclosed in Part 2 of the list.
CORRECT ANSWER C - Option A is wrong because documents may only be disclosed in Part 2 if they satisfy the test of legal professional privilege – confidentiality is irrelevant to answering this particular question. Option B is also wrong as attendance notes of meetings between the client and their solicitor would fall within the definition of standard disclosure and so must be disclosed. However, they are protected by legal advice privilege and would be described generically in Part 2.
Witness statements, whether helpful or not to the manufacturing company, would be subject to litigation privilege and disclosed in Part 2 of the list – hence, option D is wrong. If the party decides to rely upon any of the witnesses, privilege is waived at the next stage in the proceedings when the parties exchange the witness statements of those witnesses that they intend to rely on at trial.
Option E is wrong because the report does not satisfy the requirements of litigation privilege. It was commissioned before litigation was contemplated and the purpose was to establish the cause of the fault with the brakes, and not with a view to litigation for the sole or dominant purpose of obtaining advice or evidence.
Which of the following about the overriding objective of the Civil Procedure Rules (‘CPR’) is correct?
A) The overriding objective of the CPR is for the courts to deal with cases fairly and at a reasonable cost.
B) The greater the financial resources available to a party, the more it can buy the court’s resources.
C) The CPR requires the parties and their legal representatives to assist the court to achieve the overriding objective. This includes co-operating with other parties in the conduct of the proceedings.
D) The overriding objective of the CPR imposes on each party’s legal representative a duty to both the court and the opponent.
E) Dealing with a case in accordance with the CPR means the court must ensure that the case is disposed of as quickly as possible regardless of cost or any other factor.
CORRECT ANSWER C - By way of information note that CPR rule 1.3 provides that, “The parties are required to help the court to further the overriding objective.” By rule 1.4(1) the court must further the overriding objective by actively managing cases and rule 1.4(2)(a) provides that this includes “encouraging the parties to co-operate with each other in the conduct of the proceedings”.
Option A is wrong. By way of information, rule 1.1(1) states, “These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost” [emphasis added].
Option B is wrong. By way of information, rule 1.1(2)(a) and (e) provide that, “Dealing with a case justly and at proportionate cost includes, so far as is practicable, ensuring that the parties are on an equal footing and can participate fully in proceedings…. and allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
Option D is wrong. Whilst the overriding objective imposes on each party’s legal representative a duty to the court, it does not impose any duty to an opponent. In the absence of some duty imposed by law, or direction of the court, a legal representative’s duty is to act in the best interests of their client.
Option E is wrong. By way of information, rule 1.1(2)(d) states, “Dealing with a case justly and at proportionate cost includes, so far as is practicable ensuring that it is dealt with expeditiously and fairly.”
Which of the following about the allocation of a case to a track is correct?
A) The claimant must make an application to the court for the allocation of the claim to a track within 14 days of the defendant serving a defence.
B) When deciding the track for a claim, the court only takes into account the financial value of the claim.
C) Where there is both a claim and a counterclaim, the court will always assess the financial value for allocation purposes by adding the two claims together.
D) It is for the court to assess the financial value of a claim and in doing so the court will disregard any amount not in dispute, any claim for interest, costs and any contributory negligence.
E) If there is a possibility that a trial might last longer than 1 day, then the court must allocate the case to the intermediate track and if there is a possibility that a trial might last longer than 3 days, then the court must allocate the case to the multi-track.
CORRECT ANSWER D - In determining the financial value, the court disregards any amount not in dispute, any claim for interest, costs and any contributory negligence.
Option A is wrong. Allocation to a track is triggered by a defendant filing a defence. Without any hearing, the claim is provisionally allocated to one of the four tracks by a Court officer.
Option B is wrong. The CPR provides that when deciding the track for a claim, the matters to which the court must have regard include:
the financial value, if any, of the claim;
the nature of the remedy sought;
the likely complexity of the facts, law or evidence;
the number of parties or likely parties;
the value of any counterclaim or additional [Part 20] claim and the complexity of any matters relating to it;
the amount of oral evidence which may be required;
the importance of the claim to persons who are not parties to the proceedings;
the views expressed by the parties; and
the circumstances of the parties.
Option C is wrong. The court will not generally aggregate a claim and a counterclaim, particularly where they are both based on common facts and being tried at the same time does not take the length of the trial outside a day for the fast track or three days for the intermediate track. As the feedback to option B demonstrates, when deciding the track for a claim, the matters to which the court must have regard include the financial value, if any, of the claim and the value of any counterclaim or additional [Part 20] claim.
By way of information, PD 26 para 14(10) provides that where the case involves more than one money claim (for example where there is an additional claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead, it will generally regard the largest of them as determining the financial value of the claims.
Note that where a case involves a counterclaim [or (Part 20) additional claim] that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track.
Option E is wrong. The possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate a claim to the intermediate track. You should recall that the fast track is the normal track for the claims if the court considers that (a) the trial is likely to last for no longer than one day; and (b) oral expert evidence at trial is likely to be limited to (i) one expert per party in relation to any expert field; and (ii) expert evidence in two expert fields.
The possibility that a trial might last longer than 3 days is not necessarily a conclusive reason for the court to allocate a claim to the multi-track. You should recall that generally the intermediate track is the normal track where (a) the claim is suitable for neither the small claims track nor the fast track; (b) the claim includes a claim for monetary relief, the value of which is not more than £100,000; (c) the court considers that (i) if the case is managed proportionately, the trial will not last longer than three days; (ii) oral expert evidence at trial is likely to be limited to two experts per party; (iii) the claim may be justly and proportionately managed on that track; and (iv) there are no additional factors, which would make the claim inappropriate for the intermediate track; and (d) the claim is brought by one claimant against either one or two defendants, or is brought by two claimants against one defendant.
Which of the following concerning the directions questionnaire is correct?
A) The parties must complete their own directions questionnaire and should not consult with each other.
B) The questionnaire has no questions to answer concerning expert evidence as that is a matter solely for the court to determine.
C) The court will only stay proceedings for the length of time it considers appropriate if, in the questionnaire, one or more of the parties request a stay to attempt to settle the case.
D) The parties must state whether they have complied with any relevant pre-action protocol and, if not, explain their reasons.
E) If a party objects to the track to which the claim has been provisionally allocated, that party must file an application to the court with its completed questionnaire.
CORRECT ANSWER D - The court will take this opportunity to review if the parties have complied with any relevant pre-action protocol and, if not, consider staying the proceedings for steps under the relevant protocol to be completed. The court may also take any non-compliance into account when considering the issue of costs now or at the conclusion of the proceedings.
Option A is wrong. The parties must consult with one another and co-operate in completing the directions questionnaires. This includes attempting to agree case management directions. However, none of this should delay the parties filing their completed questionnaires.
Option B is wrong. Part E of the questionnaire requires the parties to indicate if they wish to rely on expert evidence at the trial, whether they have already provided any other party with a copy of an expert’s report and whether they consider a single joint expert might be appointed. Any proposed expert must be named, or their field of expertise identified. The likely cost of the expert evidence must also be stated.
Option C is wrong. First, only if all parties complete the questionnaire requesting a stay to attempt to settle the case will the proceedings be stayed by the court and that will be for one month. Second, the court may of its own initiative, whether or not any party has requested it, order a stay of any length if it considers it appropriate.
Option E is wrong. In Part C of the questionnaire a party should set out its objections to the provisional allocation of the case and its reasons for requesting a different track.
TRUE OR FALSE:
If a party to multi-track proceedings objects to any of the costs in an opponent’s budget, the objecting party will have to apply to the court for a hearing.
FALSE - Before the first case management conference in multi-track proceedings, a party must raise any objections to an opponent’s budget in the Budget Discussion Report which the court will consider at the hearing.
Which of the following about disclosure is correct?
A) A party discloses a document by stating that the document existed.
B) A document is anything in which written information is recorded.
C) A party only has to disclose a document that is now, or has in the past, been in its physical possession.
D) A court cannot make an order dispensing with disclosure.
E) A court may order that that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences.
CORRECT ANSWER E - This is one from the ‘menu’ of possible disclosure orders that a court might make in multi-track cases. By way of information, this is provided for in CPR rule 31.5(7).
Option A is wrong. A party discloses a document by stating that the document exists or has existed. Disclosure applies to documents currently in a party’s control and in respect of documents the party has had in its control in the past.
Option B is wrong. Disclosure is not limited to written information. A document is anything in which information of any description is recorded and so includes, for example, a computer database, apps, text messages, emails, DVDs, CCTV footage, postings on social media platforms and voicemail messages.
Option C is wrong. A party only has to disclose a document that is now, or has in the past, been in its control. Control includes a right of possession and a right to inspect, as well as physical possession.
Option D is wrong. A court can make an order dispensing with disclosure but only in an exceptional case.
A party to whom a document has been disclosed is entitled to inspect that document except where the party disclosing the document has a right to withhold inspection of it. That right is known as legal professional privilege from inspection.
Which of the following concerning legal professional privilege from inspection is correct?
A) Legal professional privilege only applies to solicitors and barristers.
B) Legal advice privilege covers all communications between lawyers and their clients.
C) Legal advice privilege does not extend to legal advice given by a non-lawyer, such as an accountant.
D) Litigation privilege only covers communications between client or lawyer and third parties made when litigation is ongoing.
E) Litigation privilege only covers communications between client or lawyer and third parties made for the sole purpose of ongoing litigation.
CORRECT ANSWER C - By way of information, note that in R (Prudential PLC and another) v Special Commissioner of Income Tax [2013] UKSC 1, the Supreme Court refused to extend legal advice privilege beyond members of the legal profession.
Option A is wrong. Any member of the legal profession counts and so that includes solicitors, barristers, in-house lawyers, foreign lawyers, legal executives and licensed conveyancers.
Option B is wrong. Legal advice privilege covers the confidential communications between a client and the client’s lawyer which come into existence for the sole or dominant purpose of giving or receiving legal advice. Legal advice privilege is not confined to advice about litigation nor to advice solely about legal rights and obligations. It also covers advice given to a client as to what should or should not be prudently and sensibly done by the client in any relevant legal context.
Options D and E are wrong. There are three tests that must be met for litigation privilege to apply. First, that it concerns a confidential communication between the client or lawyer and a third party. Second, that the document came into existence when litigation was contemplated or ongoing. Third, that the sole or dominant purpose for which that document was brought into existence was, at its creation, its use in the conduct, or in aid of the conduct, of the contemplated or ongoing litigation.
Which of the following accurately defines standard disclosure?
A) Standard disclosure requires a party to disclose only those documents that it chooses to.
B) Standard disclosure requires a party to disclose the documents on which it relies.
C) Standard disclosure requires a party to disclose the documents on which it relies and the documents which adversely affect another party’s case.
D) Standard disclosure requires a party to disclose the documents on which it relies, the documents which adversely affect another party’s case and the documents which support another party’s case.
E) Standard disclosure requires a party to disclose the documents on which it relies, the documents which adversely affect its own case, the documents which adversely affect another party’s case and the documents which support another party’s case.
CORRECT ANSWER E - By way of information, it is provided for in CPR rule 31.6(a) and (b)(i)(ii)(ii). Note that although rule 31.6(c) includes the documents which a party is required to disclose by a relevant practice direction, there are no such practice directions currently in force.
Option A is wrong as there is no element of choice.
Options B, C and D are incomplete. Note that standard disclosure obligations require the parties to disclose the existence of documents that record information on which they intend to rely on as part of their ‘case’; or which adversely affect their ‘case’ or another party’s ‘case’; or which support another party’s ‘case’. So, what is the ‘case’? At this stage, the ‘case’ should have been set out and defined by the statements of case already filed and served by the parties. The parties should focus on the issues in dispute and conduct a reasonable and proportionate search for documents that record information dealing with those disputed issues.
TRUE OR FALSE:
a party giving standard disclosure can only refuse to give inspection of any category or class of documents on the basis of legal professional privilege?
FALSE - Why? Because, in addition, a party may in its disclosure statement set out a claim that it will not permit inspection of any category or class of documents on the basis that they consider it would be disproportionate to the issues in the case.
A man has started court proceedings seeking damages for allegedly negligent professional advice provided to him by his former architect who designed the man’s house. Standard disclosure has been ordered. The man’s solicitors received an email from an independent architect instructed by the solicitors for the sole purpose of advising the man on the claim that he was contemplating making against his former architect.
On what basis can the man claim a right to withhold inspection of the email?
A) The email is not in the man’s control.
B) The email is subject to legal advice privilege.
C) It would be disproportionate to the issues in the case to permit inspection of the email.
D) The email is subject to litigation privilege.
E) The email was written after the man’s cause of action accrued.
CORRECT ANSWER D - The three tests for litigation privilege are met on the facts. First, that it concerns a confidential communication, the email, between the man’s solicitors and a third party, the independent architect. Second, that the email came into existence when litigation was contemplated against the man’s former architect. Third, that the sole purpose for which the email was brought into existence was, at its creation, to advise the man about his contemplated litigation with his former architect.
Option A is wrong. Although the man does not have physical possession of the email, it is in his control as he has a right to possess it and a right to inspect the email that is held by his solicitors as his agent.
Option B is wrong. Legal advice privilege covers the confidential communications between a client and the client’s lawyer which come into existence for the sole or dominant purpose of giving or receiving legal advice.
Option C is wrong. The man’s solicitors are aware of the existence of the email and so it is not disproportionate for the solicitors to search and retrieve it.
Option E is wrong. That the email was written after the man’s cause of action accrued is not a basis on which the man can claim any right to withhold inspection of the email. As you saw in the feedback to option D, when a document is written may be relevant to determining whether or not it potentially falls within litigation privilege.
