W0 MCQ (Pre-Action Consideration) Flashcards
CPR rules must be followed. The provisions in practice directions…
A. …are guidance which show best practice but need not necessarily be followed.
B. …must also be followed.
C. …explain the CPR rules.
B. …must also be followed.
Whilst it is true that the provisions in a practice direction might help you to interpret the CPR, the rules in the PDs must be followed in their own right.
The overriding objective includes dealing with cases at proportionate cost, which means…
A. …in ways proportionate to the court’s resources.
B. …in ways proportionate to the amount of money in dispute, the complexity of the case and other factors.
C. …in ways proportionate to the amount of money in dispute.
D. …in ways proportionate to the importance of the case to the parties.
B. …in ways proportionate to the amount of money in dispute, the complexity of the case and other factors.
This is what CPR 1.1 says. All the factors mentioned in the other answers are potentially relevant when considering proportionality in the overriding objective, but to focus on any one of those points would be to miss the multi-factorial approach which the court must take.
The court’s approach to case management is one best characterised as….
A. …active on the court’s part, meaning the court will act to seek out evidence in order to make a fair determination of the issues in dispute.
B. …responsive to requests from the parties for court intervention and guidance, helping them to move the case along appropriately.
C. …active on the court’s part, meaning the court will ensure that cases progress appropriately even if the parties do not seek such involvement from the court.
C. …active on the court’s part, meaning the court will ensure that cases progress appropriately even if the parties do not seek such involvement from the court.
This is what active case management means. See also CPR 1.4. The court is responsive to requests from the parties, but it is not only responsive – it takes action of its own accord, and this is really what ‘active’ case management means. Judges in the courts of England and Wales do not generally seek out evidence, rather than determine cases on the basis of the evidence put before them – so this answer would be wrong, and in any event, this is not really what case management is about.
The general rule in relation to costs is that…
A. Each party will bear its own costs.
B. The court has a discretion to determine whether one party will pay the other party’s costs.
C. The unsuccessful party will be ordered to pay the costs of the successful party.
D. The party paying costs is stipulated in the CPR.
C. The unsuccessful party will be ordered to pay the costs of the successful party.
In terms of the other answers, it is correct that the court has a discretion to determine whether one party will pay the other party’s costs, but this is not what you would describe as a ‘general rule’. It is very occasionally true that the party paying costs is stipulated in the CPR, but this is the exception rather than the rule.
If the court has ordered that one party will pay the costs of another party, the court will also need to put a figure on those costs. When it is deciding this figure, it will generally only allow recovery of…
A. …a sum which is proportionate to the value of the claim.
B. …a reasonable sum.
C. …a reasonable and proportionate sum.
C. …a reasonable and proportionate sum.
A wholesaler brings a breach of contract claim against a manufacturer. The wholesaler incurs costs of £85,000 in bringing this claim. What is the best advice to give to the wholesaler in relation to the cost consequences of the wholesaler succeeding at trial?
A. The wholesaler is likely to recover £85,000 in relation to costs.
B. The wholesaler may recover its costs, and they will be assessed at less than £85,000.
C. The wholesaler will recover £85,000 in relation to costs.
D. The wholesaler is likely to be awarded its costs, but not the full £85,000.
D. The wholesaler is likely to be awarded its costs, but not the full £85,000.
The general rule indicates that the wholesaler should recover its costs, so this is the ‘likely’ outcome on the facts presented, but the court will assess these costs, so it is unlikely that the full £85,000 will be recovered.
A claimant is told that the civil standard of proof is on a balance of probabilities. How would you expand this description so that the claimant understands what ‘on a balance of probabilities’ means?
A. That the claimant’s case is more probably true than the defendant’s case
B. That the claimant’s case is more probably true than not true.
C. That the court can be ‘sure’ that the claimant’s case is correct.
D. That the defendant’s case is unlikely to be true.
B. That the claimant’s case is more probably true than not true.
This answer is correct. The civil standard of proof is on a balance of probabilities which means that a fact is established if it is more likely than not to have happened, hence the claimant’s case is more probably true than not true.
In a breach of contract case, which party usually has the burden of proving the duty?
A. Claimant
B. Claimant and defendant
C. Defendant
A. Claimant
The burden of proving any issue of fact or law generally falls on the party who asserts it. Therefore, as the claimant asserts the duty in order to establish a claim, it will usually fall on the claimant to prove the duty.
The approach to completing a case analysis should include consideration of….
A. Loss
B. Duty breach causation and loss
C. Causation
D. Duty
E. Breach
B. Duty breach causation and loss.
All four legal elements of a cause of action should be considered as part of a case analysis.
From when does the limitation period generally start running in contract and tort claims?
A. In the case of contract, from the date of breach. In the case of tort, from the date of actionable damage.
B. In both instances, from the date of actionable damage.
C. In both instances, from the date of breach.
A. In the case of contract, from the date of breach. In the case of tort, from the date of actionable damage.
The limitation period for both contract and tort starts to run from when the cause of action accrues. For contract claims, this will be from the date of the breach of contract whereas for tortious claims, time starts to run from the date of actionable damage.
How long is the limitation period for contract and tort claims (where none of the more specific provisions apply)?
A. 12 years
B. 3 years
C. 1 year
D. 6 years
D. 6 years
This is the general rule, but there are specific provisions for personal injury claims and some latent damage claims which must be considered.
Marks Ltd, a landscaper, agrees to purchase 10 bulk bags of wood chip from a supplier at £150 each. The contract was signed on 8 January 2020 and it was a term of the contract that the wood chip would be delivered to Marks Ltd’s yard in Dorchester on 2 March 2020. It was a further term of the contract that time was of the essence. You ascertain that the wood chip was delivered to your client’s London premises 4 weeks after the contractual date of delivery. The knock-on effect of this was that Marks Ltd has lost a contract with a customer. During the case analysis, you must work out when the limitation period expires. On which of the following dates does the limitation period expire?
A. 2 March 2026
B. 8 January 2026
C. 22 December 2025
A. 2 March 2026
Under s.5 Limitation Act 1980, the limitation period for a breach of contract claim is effectively 6 years from the date of contractual breach, which is the contractual date of delivery in this case.
On 1 March 2020, Kelly is injured when a motorist collides with her car. She is immediately aware of her injuries. She exchanges personal details with the motorist that caused the accident. On 1 April 2020, a solicitor advises her that she may have a claim in negligence against the motorist. When will limitation expire?
A. 1 April 2023
B. 1 March 2023
C. 1 March 2026
D. We cannot say on these facts
B. 1 March 2023
This is a claim for personal injuries. The claim must be brought within 3 years of the latest of when the cause of action accrued, or the date of knowledge. In this case, those 2 dates are the same – the date of knowledge was the same as the accrual of the cause of action – 1 March 2020. It is not necessary for Kelly to know that she has a claim in negligence in order for her to have the requisite knowledge, so the advice from the solicitor is not relevant.
The claimant is suing Catherine Benson and Ahmed Khan, an accountancy partnership called B&K Accountancy. Who should the claimant bring their claim against?
A. Catherine Benson and Ahmed Khan trading as B&K Accountancy
B. B&K Accountancy LLP
C. Catherine Benson and Ahmed Khan trading as B&K Accountancy is incorrect because it is not a sole trader
D. B&K Accountancy (A Firm)
E. Catherine Benson and Ahmed Khan
D. B&K Accountancy (A Firm)
B&K Accountancy Limited is incorrect because it is not a company.
Catherine Benson and Ahmed Khan trading as B&K Accountancy is incorrect because it is not a sole trader.
Catherine Benson and Ahmed Khan is incorrect because of the contents of 7A PD 5A whereby claims brought against a partnership must be brought against the name under which the partnership carried on business unless it is inappropriate to do so. There is no reason in the brief facts given not to sue in the partnership name. It is sometimes appropriate to sue the partners individually if it seems likely that it will be necessary to seek enforcement of judgment against the partners’ personal assets, as well as the partnership assets, but there is nothing on the facts to suggest this (and in that instance, it is more likely that both the partnership name and the individuals’ names would be used).
B&K Accountancy LLP is incorrect because it is not an LLP.
