Dispute Resolution MCQS Flashcards
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.
C) …in ways proportionate to the amount of money in dispute, the complexity of the case and other factors
D) …in ways proportionate to the importance of the case to the parties
C) …in ways proportionate to the amount of money in dispute, the complexity of the case and other factors
(Well done. 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)
CPR rules must be followed. The provisions in practice directions…
A) …explain the CPR rules.
B) …must also be followed.
C) …are guidance which show best practice but need not necessarily be followed
B) …must also be followed
(Correct. 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 court’s approach to case management is one best characterised as….
A) …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.
B) …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.
C) …responsive to requests from the parties for court intervention and guidance, helping them to move the case along appropriately.
A) …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
(Well done. 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)
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 court can be ‘sure’ that the claimant’s case is correct.
C) That the defendant’s case is unlikely to be true.
D) That the claimant’s case is more probably true than not true
D) That the claimant’s case is more probably true than not true
(Well done. 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
(Well done. 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) Causation
B) Breach
C) Loss
D) Duty breach causation and loss
E) Duty
D) Duty breach causation and loss
(Well done. 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 both instances, from the date of actionable damage.
B) In both instances, from the date of breach.
C) In the case of contract, from the date of breach. In the case of tort, from the date of actionable damage
C) In the case of contract, from the date of breach. In the case of tort, from the date of actionable damage.
(Well done. 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) 1 year
B) 3 years
C) 6 years
D) 12 years
C) 6 years
(Well done. 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) 22 December 2025
B) 2 March 2026
C) 8 January 2026
B) 2 March 2026
(Correct. 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 March 2023
B) 1 April 2023
C) 1 March 2026
D) We cannot say on these facts
A) 1 March 2023
(Well done. 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)
A litigation claim is being brought against a sole trader called April Carter. April runs a fruit and vegetable shop called ‘Freshfare’ and the claim is in relation to the shop. How should April best be described in the claim?
A) April Carter
B) Freshfare Limited
C) Freshfare LLP
D) April Carter (trading as Freshfare)
E) Freshfare (a firm)
D) April Carter (trading as Freshfare)
(Correct; for sole traders, commonly both the individual and trading name will be used when describing a party to the claim and therefore the ‘best’ answer is April Carter (trading as Freshfare). This is particularly the case as the dispute appears to be in relation to her shop)
What steps can be taken against a child or protected party in proceedings before the appointment of a litigation friend?
A) Make an interim application pre-action
B) Serve a defence
C) Issue and serve a particulars of claim
D) Issue and serve a claim form
D) Make an interim application during proceedings
D) Issue and serve a claim form
(Correct. A person cannot make an application against a child or a protected party before proceedings have started or take any step in the proceedings unless the child or protected party has a litigation friend (CPR 21.3). The exceptions are to serve a claim form or to seek the appointment of a litigation friend by way of a court order. Any other step taken in the proceedings where there is no litigation friend has no effect (CPR 21.3(5)).
Make an interim application during proceedings or pre-action, serve a defence or issue and serve a particulars of claim are all incorrect because of CPR 21.3 which limits what steps can be taken before a litigation friend is appointed)
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) B&K Accountancy (A Firm)
B) Catherine Benson and Ahmed Khan
C) Catherine Benson and Ahmed Khan trading as B&K Accountancy
D) B&K Accountancy LLP
E) Catherine Benson and Ahmed Khan trading as B&K Accountancy is incorrect because it is not a sole trader
A) 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)
Which of the following IS NOT a consequence indicated in the practice direction on pre-action conduct as a possible result of failing to comply with the PD on pre-action conduct or applicable pre-action protocol?
A) The claim could be stayed.
B) The claim could be struck out.
C) The party failing to comply could be penalised in interest.
D) The party failing to comply could be penalised in costs.
B) The claim could be struck out
(Well done. Whilst this is theoretically possible (CPR 3.4(2)) it is not specifically mentioned in the practice direction on pre-action conduct, perhaps because alternatives such as a stay are more proportionate sanctions)
Which of the following is most likely to justify issuing proceedings without full compliance with the rules on pre-action conduct?
A) The value of the claim being so small that compliance would be disproportionate.
B) The defendant refusing to contemplate settlement of the claim.
C) The imminent expiry of a limitation period.
C) The imminent expiry of a limitation period.
(Correct. A party cannot be expected to comply with the rules on pre-action conduct if that would lead to proceedings being issued too late from a limitation perspective. In these circumstances, a party should issue proceedings but then apply to court for a stay of the proceedings while they comply with the pre-action rules (PD on pre-action conduct, para 17). In terms of the other answers, compliance is expected in a claim of small value – you could argue that taking steps to resolve a claim without court proceedings is particularly important if the value of the claim is small. The defendant refusing to contemplate settlement of the claim is not a good reason not to comply with the pre-action rules)
The Practice Direction – Pre-action Conduct and Protocols requires the claimant (in the usual course of events) to write to the defendant with concise details of the claim and for the defendant to respond __________
A) within a reasonable time.
B) within 14 days.
C) within 28 days.
D) as soon as possible.
A) within a reasonable time
(The defendant is required to respond within a reasonable time, which could be 14 days in a straightforward case and no more than 3 months in a very complex one (paragraph 6 of the Practice Direction))
C wishes to bring a personal injury claim against his employer. The claim is valued at £65,000. What is the best advice to give C about whether to issue a claim in the County Court or the High Court?
A) The claim should be issued in the Chancery Division of the High Court.
B) The claim must be issued in the High Court.
C) The claim can be issued in either the County Court or the High Court.
D) The claim should be issued in a specialist division of the County Court.
E) The claim must be issued in the County Court.
C) The claim can be issued in either the County Court or the High Court
(Correct. As this is a personal injury claim exceeding £50,000, both the County Court and High Court have jurisdiction. You will need to consider the factors in 7A PD 2 when making a final decision about whether to issue in the County Court or the High Court)
Which of the following isNOT specified in the CPR as a justification for issuing proceedings in the High Court (when the CPR does not indicate that either the County Court or the High Court is mandatory)?
A) The importance of the outcome to the public.
B) The complexity of the procedures involved.
C) The claimant believes that the claim ought to be dealt with by a High Court judge.
D) The financial value of the claim.
E) The availability of High Court resources (at the time of issue).
E) The availability of High Court resources (at the time of issue).
(Correct. The relevant rules do not indicate that this is a potential justification)
In order to avoid a limitation defence, what must be done before the limitation date?
A) The claim form must be issued.
B) The claim form must be served.
C) The particulars of claim must be served.
D) The claim form and particulars of claim together must be filed and served.
E) The particulars of claim must be filed at court
A) The claim form must be issued
(Correct. It is the issuing of the claim form that begins the claim and stops time running for limitation purposes (Limitation Act 1980, CPR 7.2 and 7A PD 5))
If particulars of claim are not contained in or served with the claim form they must be served…
A) …within 14 days of service of the claim form or within 4 months of the claim being issued (whichever is later).
B) …within 14 days of service of the claim form.
C) …before service of the claim form.
D) …within 14 days of service of the claim form, and also within 4 months of the claim being issued
D) …within 14 days of service of the claim form, and also within 4 months of the claim being issued
(Well done. See CPR 7.4(2))
The deadline for taking the ‘relevant step’ to serve the claim form is 12.00 midnight on the calendar day [how many?] months after the date of issue of the claim form (assuming service within the jurisdiction)?
A) 2
B) 6
C) 4
D) 3
C) 4
(Well done. See CPR 7.5(1))
The deadline for taking the ‘relevant step’ to serve the claim form depends on…
A) …when the claim form was issued.
B) …the method of service to be adopted.
C) …the date of last correspondence with the defendant.
E) …when the limitation period expires.
A) …when the claim form was issued.
An antique furniture dealer commences proceedings against an individual in relation to £25,000 owed by the individual for furniture purchased. The individual has instructed solicitors and the solicitors have provided an address for service. Which of the following is a permitted method of service of the claim form?
A) Service on the business address of the solicitor.
B) Personal service on the individual.
C) Service by post to the usual or last known residence of the individual by post.
D) Service by any of the methods listed in the other answers.
E) Service by depositing the claim form at the usual or last known residence of the individual.
A) Service on the business address of the solicitor
(Correct. As the solicitor has been instructed to accept service of proceedings, this is now the only permissible place to serve the claim form (CPR 6.7))
If a witness statement is served by document exchange, the deemed date of service will be on….
A) The day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
B) The second day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day.
C) The same day that the witness statement was left with, delivered to or collected by the DX service provider, provided this happens before 4.30pm and that day is a business day.
D) The second day after the witness statement was left with, delivered to or collected by the DX service provider, regardless of whether that day is a business day or not.
E) The day after the witness statement was left with, delivered to or collected by the DX service provider, regardless of whether that day is a business day or not.
B) The second day after the witness statement was left with, delivered to or collected by the DX service provider, provided that day is a business day
(Correct. The document served is a witness statement so the rules relating to documents ‘other than a claim form’ apply. These state that for service by DX the deemed date of service will be the second day after taking the necessary steps as listed in the rule to place the document with the DX service provider, provided that day is a business day)
A defendant agrees to accept service by email. The claim form is then duly served by email. The email is sent on Friday 19 October. The claimant receives notification that it has been read on Monday 22 October. When is the claim form deemed served?
A) Saturday 20 October.
B) Tuesday 23 October.
C) Sunday 21 October.
D) Friday 19 October.
E) Monday 22 October.
B) Tuesday 23 October
(Correct. The document served is a claim form (which has different rules to other documents). Deemed date of service will be the second business day after the relevant step to serve was taken, as listed in CPR 7.5(1). For service by email this step is sending the email. Both the first and second days must be business days (ie not weekend or other holiday days) so the first business day is Monday 22 October and the second business day, the date of deemed service, is Tuesday 23 October)
A witness statement properly addressed is collected by the DX service on Friday 4 March. When is it deemed served?
A) Saturday 5 March
B) Monday 7 March
C) Sunday 6 March
D) Friday 4 March
E) Tuesday 8 March
B) Monday 7 March
(Well done. It would be deemed served second day after posting / giving to DX provider, if a business day, and otherwise it would be deemed served the next business day. The DX provider took it on 4 March. The second day after this is 6 March, a Sunday, and not a business day. So it would be deemed served the next business day, which is Monday 7 March)
A defence is posted (second class) on Thursday 1 November. When is it deemed served?
A) Monday 5 November.
B) Friday 2 November.
C) This is not an acceptable mode of service – it will not be deemed served at all.
D) Thursday 1 November.
E) Saturday 3 November.
C) This is not an acceptable mode of service – it will not be deemed served at all
(Correct. Second class post is not an acceptable method of service, only first class post)
Which of the following lists are all statements of case?
A) Defence and Expert’s report
B) Claim form and Reply to defence
C) Particulars of claim and Witness statement
D) Acknowledgment of service and Defence
B) Claim form and Reply to defence
(Correct. Statements of case are key documents by which the parties set out their position in relation to the factual basis of the claim and the claimant’s entitlement to relief. They therefore include the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence)
The claimant has issued a claim form with attached particulars of claim and served the documents on the defendant. The defendant has filed and served a defence. The claimant realised it has made a mistake in the particulars of claim: it has not set out one of the duties. What should the claimant do?
A) Apply to the court for an amendment
B) Withdraw its claim
C) Tell the defendant
A) Apply to the court for an amendment
(Correct. If a statement of case does not comply with necessary content or includes a mistake, it requires formal amendment. This is likely to require the input of the court, giving permission and making further directions to allow for the defendant to amend its defence, etc. There may be costs consequences for the claimant)
If a statement of case contains a serious false statement, what are the implications for the client who has signed the statement of truth?
A) The case is struck out
B) Nothing. The statement of case is the responsibility of the solicitor.
C) Proceedings for contempt of court
D) Costs sanctions
C) Proceedings for contempt of court
(Correct. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases)
Angela Smith and Brian Jones are business partners in a firm which trades under the name ‘AB Partnership’. If suing this partnership, how would the name of this defendant appear on the claim form?
A) AB Partnership Limited
B) (1) Angela Smith (2) Brian Jones
C) AB Partnership LLP
D) AB Partnership (a Firm)
E) Angela Smith and Brian Jones trading as AB Partnership
D) AB Partnership (a Firm)
(Correct. As the partners are being sued as a partnership (ie in the name of the firm and not as individuals) and there is nothing to suggest this is anything other than a traditional partnership (ie it is not an LLP), this is the correct format for the name of this defendant)
It is often appropriate to include the particulars of claim on the claim form for a claim that is a….
A) Against multiple parties
B) Complex contractual dispute
C) Professional negligence claim
D) Personal injury claim for a brain injury
E) Simple debt claim
E) Simple debt claim
(Correct. Particulars of claim are usually contained in a separate document, but they can be included in the claim form where they are relatively concise which they are likely to be in a simple debt claim)
In working out the statement of value in the claim form, the following matters should not be taken into account…
A) Damages, interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
B) Counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
C) Contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
D) Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
E) Interest and costs only.
D) Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.
(Correct. These items should be disregarded for the purposes of the statement of value in the claim form (CPR 16.3(6)))
In a negligence claim in the High Court, where the claimant claims damages for loss of reputation, which of the following most accurately describes the likely position in relation to interest being claimed in the particulars of claim?
A) A claim for interest on these damages will not be included in the particulars of claim as the amount of these damages will need to be estimated by the court and are not yet outstanding.
B) A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s69 County Courts Act 1984.
C) A claim for interest on these damages can be included in the particulars of claim. This must include an exact calculation including the percentage rate, period claimed and total to date and will be based on s35A Senior Courts Act 1981.
D) A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on contractual principles.
E) A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981
E) A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981.
(Correct. This is a tort claim (negligence) in the High Court so there is no contractual interest provision that might apply and the Senior Courts Act is appropriate for the statutory claim. This is an unspecified claim, as the damages concerned will need to be estimated by the court, so the interest can be pleaded generally)
The claimant agreed to provide the defendant with building materials. The contract setting out all terms of the agreement was signed by both the claimant and the defendant. There is now a dispute and the claimant has issued court proceedings against the defendant. What should the claimant attach to the particulars of claim?
A) An expert’s opinion
B) Particulars of an oral agreement
C) A witness statement
D) Particulars of the conduct relied on
E) Written agreement
E) Written agreement
(Correct. There are requirements for the particulars of claim in specific types of claim and situations. Here, the claim is based on a written agreement and so the written agreement should be attached. The claim is not based on an oral agreement or an agreement by conduct and so particulars of words spoken or conduct are not required. It is not the purpose of the particulars of claim to set out evidence (from an expert or a witness); this is provided at a later stage)
What is the purpose of the prayer in the particulars of claim?
A) A summary of the relief sought by the claimant
B) A summary of the duty, breach, causation and loss
C) A summary of the interest sought by the claimant
D) A summary of the parties
E) A summary of the damages sought by the claimant
A) A summary of the relief sought by the claimant
(Correct. The particulars of claim closes with a summary of the remedies sought by the claimant and so gives the court and the defendant a quick means of ascertaining what the claimant actually wants. It includes damages and, if claimed, interest)
You have just been instructed by a new client. Today’s date is 15th December and you advise your client that the limitation for its proposed claim expires on 27th December in 12 days’ time. The Practice Direction on Pre-action Conduct applies to the claim. Your client would like to proceed with the claim, but will not be available to assist with case preparation until early in January. Your client wants to know whether it is possible to postpone issuing proceedings until early in January? What advice should you give your client?
A) Your client should comply with the Practice Direction on Pre-action Conduct prior to issuing proceedings as failure to do so will result in adverse costs consequences.
B) Your client should write a letter to the defendant setting out the nature of the proposed claim and await a response as a demonstration of good conduct in the proceedings in accordance with the Practice Direction on Pre-action Conduct.
C) Your client should write a letter to the defendant setting out the nature of the proposed claim and suggesting that they agree to postpone proceedings until early in January.
D) Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct.
E) Your client should issue the claim form straight way but wait to serve it until the beginning of January when it is able to attach the particulars of claim to provide the defendant with more information on its underlying claim
D) Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct
(CORRECT: Given the tight timelines and the application of the Practice Direction on Pre-action Conduct the best course of action for the client is to issue the claim form straight away (so preventing the claim from being time-barred by limitation) but contact the defendant so that they can apply to the court asking for a stay to proceedings allowing compliance with the Practice Direction (paragraph 17). The other options set out do not fully address the duty owed by the claimant to comply with the Practice Direction or deal effectively with the risk of the claim being time-barred due to limitation)
A solicitor has been instructed on behalf of a supermarket chain to act in relation to a breach of contract claim against one of the supermarket’s suppliers. The supermarket chain is a private company. Having completed the requirements set out in the Practice Direction on Pre-action Conduct and having failed to settle the claim, the solicitor drafts the particulars of claim on behalf of their client. The managing director of the supermarket chain will sign the statement of truth on the particulars of claim. Which of the following gives the correct format for the statement of truth?
A) The Claimant believes that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe 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.
B) The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
C) I am duly authorised by the Claimant to sign these particulars of claim. I understand that proceedings for contempt of court maybe 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.
D) The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
E) I believe that the facts stated in these particulars of claim are true. I understand that proceedings for contempt of court maybe 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.
D) The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe 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
(Well done. This is the correct form of a statement of truth where a statement of case (here, the particulars of claim) is being signed on behalf of a company. This was covered in the element ‘General rules in relation to statements of case’)
Your client wishes to commence proceedings for breach of contract against a supplier for defective goods. The amount of the claim is £108,000 (inclusive of £18,000 VAT). The claim is not complex. In which court can your client issue proceedings?
A) Because the case will be allocated to the multi-track, your client ought to commence proceedings in the High Court.
B) If your client commences proceedings in the County Court it is likely that the court will transfer it to the High Court.
C) Your client must issue proceedings in the High Court.
D) Your client has a choice as to whether to issue proceedings in the County Court or the High Court.
E) Your client must issue proceedings in the County Court given that the principal amount is £90,000.
D) Your client has a choice as to whether to issue proceedings in the County Court or the High Court
(Correct. Given that the amount is over £100,000 (even if this is only as a result of VAT), your client has a choice as to where to issue proceedings (7A PD 2.1 and CPR 16.3(6)). However, facts here may point towards the Count Court being the better choice given the complex is not complex and the value is only just over the £100,000 threshold)
A client is claiming damages for negligence by a solicitor. The solicitor works in a city law firm’s commercial property department and is listed in Chambers & Partners as a specialist in commercial property law. It is alleged that the solicitor negligently advised the client about the meaning of a restrictive covenant which has directly let to the client suffering loss. Which of the following statements best describes the standard of care that the solicitor should have exercised in this case?
A) The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property.
B) The solicitor must act to the standard of a reasonably competent practitioner.
C) The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property and recommended in Chambers & Partners.
D) The solicitor must act to the standard acceptable to a responsible body of practitioners.
E) The solicitor must act to the standard the majority of solicitors would act.
A) The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property
(The solicitor owes the client a duty to exercise reasonable care and skill (in both contract and tort). The duty owed is the same in contract and tort. The duty in contract derives from an implied term to act with reasonable care and skill pursuant to s.13 Supply of Goods and Services Act 1982. The same duty is owned in tort as Hedley Byrne v Heller (and later Caparo v Dickman) established that a person who makes a negligent statement could owe a duty of care to a person who suffered pure economic loss through reliance on that statement if there is a special relationship between the parties. The solicitor / client relationship is an established category of special relationship where it is reasonable to impose a duty. The standard is that of a reasonably competent solicitor. The court will consider that a solicitor is not normally negligent if acting in accordance with general practice (Bolam), but that is not conclusive and in deciding what is reasonable, the court may look at the level of skill it believes members of the professional ought to have had (Bolitho). There is a slightly higher standard for someone of greater experience and skill, for example, specialising in commercial property, in contrast to a solicitor who is a general practitioner, but no higher standard. The individual Chamber’s recommendation does not affect the standard. This question is a reminder that you need to have knowledge of contract and tort. Please remember that you have access to contract and tort materials on Adapt)
Your client is a company who is intending to commence proceedings against a partnership claiming professional negligence. The claim is for £500,000. As required, the company and the partnership have been following the Professional Negligence Pre-action Protocol. Recently, however, the solicitors for the potential defendant partnership were 2 days late in responding to the letter of claim without seeking an extension or offering any explanation. Which of the following statements best describes what your client should do, assuming it wishes to commence proceedings as soon as possible?
A) The company should expect more favourable case management orders since it has complied with the protocol and the partnership has not.
B) The company should commence proceedings as the Pre-action Protocol has not been followed by the partnership.
C) The company should raise the partnership’s non-compliance with the court and ask the court to impose costs sanctions for non-compliance with the protocol.
D) The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
E) The company should not raise the partnership’s non-compliance with the protocol at the moment but instead ask the court to make an adverse costs order at the end of the case (CPR 44.2) to reflect the non-compliance.
D) The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol
(CORRECT. Parties are expected to comply with the spirit of the protocols and the court will not be concerned with trivial breaches (paragraph 13 PD on Pre-action Conduct))
On receipt of the claimant’s claim form and particulars of claim, you advised your client, the defendant, that it has a good defence. You have just returned from holiday 3 days late due to your flight being cancelled. In your absence, judgment in default was entered against your client as you failed to file an acknowledgement of service or defence within 14 days of deemed service of the particulars of claim.
What is the best answer about whether there is anything you can do to enable your client to defend the claim?
A) Issue an application to set aside judgment as the judgment in default has been wrongly entered.
B) There is nothing that can usefully be done.
C) Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
D) Issue an application to strike out the claimant’s claim.
E) Issue an application to set aside judgment in default as the defendant is not at fault for failing to file acknowledgement of service in time.
C) Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly
(Correct. The application to set aside judgment in default should be made promptly and should show some merit to the defence. The other answers are incorrect because ‘fault’ is not necessarily relevant, the judgment has been correctly entered, and there is no basis for applying for strike-out)
A building company is suing a sub-contractor for breach of contract in the High Court. The claim is valued at £500,000 and it is a few days before the defence is due to be served. The sub-contractor needs to collate some financial information from its quantity surveyor about the works in order to finalise its defence. The quantity surveyor has just confirmed that it is unable to supply this information for at least the next 2 weeks. The defendant requests an extension of 3 weeks to serve its defence but the building company refuses to agree this extension of time. The sub-contractor therefore applies to the court for an extension of 3 weeks.
Which of the following arguments will be the most persuasive when the court is considering granting this extension?
A) Whether the date of the final hearing will be affected.
B) Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor.
C) Whether the case is in the High Court
D) Whether the sub-contractor’s prospects of successfully defending the claim are good.
E) Whether the building company’s prospects of success in the claim are good.
B) Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor
(Correct. When the court is exercising its case management powers, it will want to further the overriding objective to ensure that any extension enables the court to deal with the case justly and at proportionate cost. This will be alongside the reasons why an extension is required by the sub-contractor / not agreed by the building company)
On Thursday 1 October, your client issued a claim form in the High Court against the defendant to the claim claiming £125,000 being the price of goods sold and delivered. Unfortunately, the parties did not follow the Practice Direction on Pre-action Conduct. The claim form and particulars of claim were served together by first class post on Wednesday 14 October. The defendant has not yet filed any response to the claim. It is now Monday 2 November. Your client wishes to enter judgment in default for the sum of £125,000 plus interest. Which one of the following answers is correct?
A) Your client may NOT enter judgment in default because the deadline for filing an acknowledgment of service has not elapsed.
B) Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
C) Your client may enter judgment in default because at least 14 days have elapsed since the claim form was issued.
D) Your client may NOT enter judgment in default because the defendant does not have to file an acknowledgment of service and the deadline for filing a defence has not elapsed.
E) Your client may NOT enter judgment in default because your client did not write a letter of claim in accordance with the Practice Direction on Pre-action Conduct.
B) Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served
(Correct. Default judgment may be obtained in default of the defendant filing an acknowledgment of service and/or a defence (CPRs 12.1 and 12.3). The defendant should have filed an acknowledgement of service within 14 days of service of the claim form where the claim form and particulars of claim were served together or within 14 days after service of the particulars of claim where the claim form stated that the particulars of claim was to follow (CPR 10.3(1)(a)); or a defence within 14 days of service of the particulars of claim (CPR 15.4). The deemed date of service of the claim form and the particulars of claim was Friday 16 October and the defendant should have filed either an acknowledgment of service or a defence within 14 days after the deemed date of service which was Friday 30 October. This date has now passed and it is open for the claimant to apply for default judgment)
A firm is acting on behalf of a defendant in a litigation matter. The claimant served the defendant in England and Wales with the claim form and particulars of claim by personal service at 2.00 pm on Monday 5th July. The firm would like to serve the defence on the latest date possible without seeking permission from the claimant.
Based on the above information, the defendant, acting prudently, should file and serve its defence by when?
A) 30 August
B) 21 July
C) 2 August
D) 4 August
E) 19 July
C) 2 August
(Correct. The general rule is that the period for filing a defence is, a) 14 days after service of the particulars of claim; or b) If the defendant files an acknowledgement of service, 28 days after service of the particulars of claim (CPR 15.4). Time starts from the date of deemed service of the particulars of claim and the latest date to file a defence is 28 days after this date as long as an acknowledgement of service is filed.
If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, then there is some ambiguity in the rules as to whether the rules for service of the CF (CPR 6.14) apply to the particulars of claim too, or whether the rules for documents other than the CF (CPR 6.26) apply. This could lead to the claim form and particulars of claim being deemed served on different dates, despite being in the same envelope.
A party responding to proceedings would be prudent to act on the assumption that the particulars are served on the earliest possible date. Therefore, here, deemed service of the particulars of claim (served within England and Wales personally before 4pm on a business day) is the same day, Monday 5 July (CPR 6.26). A period of time expressed as a number of days is computed as clear days which means the day on which the period begins, 5 July, is not included. The day on which the period ends is not included if it ends in an event (otherwise, it is included).
This means counting time begins on a clear day, 6 July, and ends on the twenty-eighth day of counting, here, 2 August, as the period does not end in an event ie a hearing)
The claimant is an investor bringing a claim against a former advisor, alleging negligent advice. Your client is the defendant advisor. The claimant alleges in paragraph 6 of its particulars of claim that ‘in breach of the implied term of the contract to exercise reasonable skill and care, the defendant failed to provide the claimant with adequate information from which to make an informed decision as to whether or not to proceed with the investment’. The advisor tells you that this is not true and that the claimant was provided with adequate information in a letter dated 6 April from which to make an informed decision. Your case analysis confirms that the information in the letter was adequate to discharge the advisor’s duty of care.
How should the defendant respond to paragraph 6 of the particulars of claim in the defence?
A) ‘The defendant requires proof of paragraph 6 of the particulars of claim.’
B) ‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
C) ‘The defendant requires proof of paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
D) ‘The defendant admits paragraph 6 of the particulars of claim.’
E) ‘The defendant denies paragraph 6 of the particulars of claim.’
B) ‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
(Well done. As your client has another version of events, your client can deny the paragraph and set out that other version of events. In relation to the other answers, it would clearly be wrong to admit the paragraph, and putting the claimant to proof is only appropriate if the defendant can neither admit nor deny)
A counterclaim must…
A) Be based on a cause of action in which the defendant can establish duty, breach, causation and loss.
B) Always be heard with the main claim.
C) Be related to the claimant’s cause of action in the main claim.
D) Arise out of the same facts as the main claim.
E) Be made at the same time as the defendant files their defence.
A) Be based on a cause of action in which the defendant can establish duty, breach, causation and loss
(Correct. A counterclaim is a claim like any other and these four essential elements of the cause of action are essential)
A claimant claims £125,000 from the defendant in the main claim. The defendant makes a counterclaim of £50,000 and, as the facts underlying the counterclaim give rise to a set off, the defendant also raises this in defence to the main claim. Assuming both claimant and defendant win their respective claims, what will the final outcome be here?
A) The claimant will pay the defendant £75,000.
B) The defendant will pay the claimant £75,000.
C) The defendant will pay the claimant £175,000.
D) The defendant will pay the claimant £125,000.
E) The claimant will pay the defendant £50,000.
B) The defendant will pay the claimant £75,000
(Correct. The defendant will owe the claimant the £125,000 the claimant was awarded in their claim, less the £50,000 the defendant was awarded from the claimant in the counterclaim and which will be deducted by way of set off. The balance is £75,000)
A reply…
A) Is a compulsory statement of case for the claimant following the service of a defence and counterclaim.
B) Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim.
C) Will usually be followed by further statements of case such as an amended defence.
D) Should be filed within 14 days after service of the defence.
E) Is a compulsory statement of case for the claimant following the service of a defence.
B) Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim
(Correct. The reply is an optional statement of case and will only be served if needed. Please see CPR 15.8)
C is suing D1 and D2. D1 has the following claims: i) a counterclaim against C based on an unpaid invoice; and ii) a claim against D2 for a contribution or indemnity in respect of any damages D1 is ordered to pay to C.
What type of additional claim is D1’s claim against D2?
A) An additional claim for a contribution or indemnity against a third party
B) A counterclaim against a person other than the claimant
C) An additional claim for a contribution or indemnity against an existing party
D) An additional claim for a remedy other than a contribution or indemnity against an existing party
E) A classic counterclaim.
C) An additional claim for a contribution or indemnity against an existing party
(Correct. D1’s claim against D2 is a claim against an existing party for a contribution or indemnity (CPR 20.6))
C is suing D1 and D2. D1 brings an additional claim against E (CPR 20.7). In the proceedings E will be referred to as…
A) The Additional Claim Defendant.
B) The Part 20 Defendant.
C) The Fourth Party.
D) The Third Defendant.
E) The Third Party.
E) The Third Party.
(Correct. Additional parties will be referred to in accordance with the order in which they are joined to the proceedings (20 PD 7.4). E is the first additional party to join the proceedings so is the Third Party)
C is suing D. D brings an additional claim (CPR 20.7) against E. If E fails to respond to the additional claim within the applicable time limits…
A) D will not be able to apply for default judgment but E will be deemed to admit the additional claim. D will still need to prove any issues from the main claim between C and D in so far as they are relevant to the issues in the additional claim.
B) D will not be able to apply for default judgment but E will be deemed to admit the additional claim and will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
C) D will be able to apply for default judgment against E in the additional claim and E will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
D) E will be deemed to intend to defend the additional claim but will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
E) D will be able to apply for summary judgment against E in the additional claim and E will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
B) D will not be able to apply for default judgment but E will be deemed to admit the additional claim and will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim.
(Correct. The additional claim will have been accompanied by an acknowledgment of service form and response pack and needs to be responded to in the usual way, failing which it will be deemed admitted as described in this option (CPR 20.11(2)))
C issues and serves a claim on D Limited following extensive dealings with the managing director of D Limited. D Limited defends the claim and the claim is now at the exchange of evidence stage. Although the claim was in time when issued, the limitation period has now expired. It transpires that the claim form mistakenly names the defendant as E Limited rather than D Limited.
Will C be able to amend the claim form to substitute E Limited with D Limited?
A) C will be permitted to amend the claim form but only if D Limited consents to this.
B) C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant.
C) C will not be permitted to amend the claim form as E Limited is a completely different entity and has a different identity from D Limited.
D) C will be permitted to amend the claim form as the limitation period was current when the original claim was issued.
E) C will not be permitted to amend the claim form as the limitation period for this has now expired and this would be a new claim against D Limited which is out of time.
B) C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant
(Correct. This situation falls within CPR 17.4(3). D Limited was always the intended defendant and the mistake causes no reasonable doubt as to the identity of the defendant)
Permission to amend the particulars of claim to add a party after the claim form has been served but before the limitation period has expired should be given if…
A) The claimant has a reasonable prospect of success in the claim against the new party.
B) The amendment is agreed by all other parties.
C) The amendment is made not too close to the trial date.
D) The amendment is ‘necessary’.
E) The amendment is ‘desirable’.
E) The amendment is ‘desirable’.
(Correct. This is the main test as set out in CPR 19.2)
Amended statements of case must…
A) Use coloured amendments.
B) Use margin references to indicate where amendments have been made.
C) Show the original text as well as the new text.
D) Be verified by a statement of truth unless the court orders otherwise.
E) Use a numerical code for amendments.
D) Be verified by a statement of truth unless the court orders otherwise
(Correct. See CPR 22.1(2))
When is the court most likely to make an order for further information?
A) After the party seeking the information has made the request to the other party on the telephone.
B) After a voluntary request to the other party has been refused or not responded to.
C) After the parties have reached an agreement about the request.
D) After the parties have indicated that no further information is required.
E) After the parties have complied with the overriding objective.
B) After a voluntary request to the other party has been refused or not responded to
(It is correct to say that the court is most likely to make an order for further information after a voluntary request to the other party has been refused or not responded to. The court expects the parties make requests on a voluntary basis first and the parties should only make an application to the court for an order under CPR 18.1 if the request cannot be resolved – see 18 PD 1.
The other answers are incorrect:
After the parties have complied with the overriding objective. Parties are expected to comply with the overriding objective at all times and it will always be a factor that the court takes into account when making an order, but it is not the ‘reason’ for the court making an order here.
After the parties have reached agreement about the request. If the parties have reached agreement, they do not need a CPR 18.1 court order – 18 PD 1.
After the party seeking the information has made the request to the other party on the telephone. The party seeking information should serve a written request on the other party stating a date for a response (and allowing the other party a reasonable amount of time to respond) – 18 PD 1.
After the parties have indicated that no further information is required. If no further information is required by either party, they do not need a CPR 18.1 court order – 18 PD 1)
When an application for an order for further information is made to the court, it should be made as…
A) The use of the court’s general case management powers – CPR 3.1
B) Relief from sanctions – CPR 3.9
C) An amendment to a statement of case – CPR 17
D) An interim application – CPR 23
E) The court’s allocation to track – CPR 26
D) An interim application – CPR 23
(The correct answer is that an application for an order for further information is made as an interim application pursuant to CPR 23. The application should be made as an interim application under CPR 23 (18 PD 5).
The other options were incorrect:
The use of the court’s general case management powers – CPR 3.1
Relief from sanctions – CPR 3.9
The court’s allocation to track – CPR 26
An amendment to a statement of case – CPR 17
These relate to other types of application)
A party can obtain further information from the other party to clarify or give additional information in relation to any matter…
A) Which is in dispute in the proceedings
B) Which is contained in or referred to in a defence.
C) Which is contained in or referred to in a statement of case.
D) Which is contained in or referred to in a witness statement
E) Which is contained in or referred to in a particulars of claim
E) Which is contained in or referred to in a particulars of claim.
Correct
A) Which is in dispute in the proceedings
(The correct answer is that a party can obtain further information from the other party to clarify or give additional information in relation to any matter which is in dispute in the proceedings as explained at the beginning of this element.
The incorrect answers are:
Which is contained in or referred to in a statement of case.
Which is contained in or referred to in a defence.
Which is contained in or referred to in a particulars of claim.
Which is contained in or referred to in a witness statement.
The definition is broader than these options. The request is often in relation to a matter contained or referred to in a statement of case, but the court’s power is not limited to matters contained or referred to in a statement of case (or to any other particular document))
In a case involving four defendants, one of the defendants amends its defence to allege that the claimant was contributorily negligent. The court grants permission for this amendment. Which party will usually pay the costs of and arising from the amendment?
The unsuccessful party at the end of the trial in accordance with the general rule on costs (CPR 44.2).
A) The claimant
B) The defendant applying for the amendment
C) All the parties to the action
D) All the defendants
B) The defendant applying for the amendment
(Well done. This reflects the rule that a party applying for an amendment will usually be responsible for the costs of and arising from the amendment (PD17 and PD19). So, in this case it is likely that the defendant making the amendment would be responsible for the costs. Note that the rule is not obligatory, and the court can depart from it. Given this rule, it is unlikely that the costs would fall to be determined at the end of the trial as most other costs would (CPR 44.2))
Your client has received a request for further information by letter in respect of a defence it filed to a claim against it for misrepresentation. The defence as currently drafted fails to fully detail the oral representations made by your client before the contract was entered into. Your client agrees to provide the information requested. Which of the following most accurately describes the form your client’s response to the request for further information should take?
A) The client’s response should be in writing, signed, dated and be verified by a statement of truth.
B) The client’s response should be in the form of a letter in reply which will be signed and dated as normal.
C) The client’s response should take the form of an amended defence.
D) The client’s response should be in writing, signed and dated but need not be verified by a statement of truth.
E) The client should provide the information in whichever form is most proportionate including verbally, for example, in a telephone call.
A) The client’s response should be in writing, signed, dated and be verified by a statement of truth
(Correct. Whatever form the request has taken, the response must be in writing, dated and signed by either the party or their legal representative and also verified by a statement of truth. It could be by letter or by way of a formal reply. (PD 18))
The claimant claims £32,000. The defendant pleads £8,000 ‘set off’ in its defence and counterclaim against the claimant. If the claimant is successful at trial and the defendant is also successful at trial in its counterclaim, what is the effect of the judgment?
A) Defendant pays the claimant £24,000
B) Defendant pays the claimant £8,000
C) Claimant pays the defendant £8,000
D) Defendant pays the claimant £32,000
E) Defendant pays the claimant nothing
A) Defendant pays the claimant £24,000
(Correct. The set off applies and extinguishes £8,000 of the claimant’s judgment against the defendant. The defendant therefore pays the claimant the net sum of £24,000)
A construction company intends to sue one of its sub-contractors, an electrician, for breach of contract. The claim form has been issued, but it has not yet been served. Before service of the claim form, the construction company decides to add a new defendant, a plumber, to the claim as an additional party. Which of the following best describes the position of the construction company?
A) The construction company will require the written consent of both the electrician and the plumber to add the additional party.
B) The construction company should seek the written consent of the electrician to add the additional party.
C) The construction company should apply to the court for permission to add the additional party.
D) The construction company should seek the written consent of the plumber to be added as an additional party.
E) The construction company will not require the court’s permission to add the additional party.
E) The construction company will not require the court’s permission to add the additional party.
(Well done. The claim form has been issued but not served. In this case, the court’s permission is not necessary to add the plumber as an additional party (nor is permission needed from either the electrician or the plumber) (CPR 19.4(1)))
During her employment as a delivery driver, your client, Sue, was involved in a road traffic accident with another car. Your client has sued the driver of the other car, Amir, for personal injuries. Amir, in turn, has issued a counterclaim against your client claiming damages for personal injuries that Amir also sustained in the road traffic accident. Amir wishes to use the same arguments in the counterclaim against your client’s employer. The employer is vicariously liable for your client’s actions. Can Amir add your client’s employer as a party to the proceedings?
A) No, as there is no Part 20 claim that provides for this situation.
B) Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
C) Yes, as a counterclaim against the claimant (CPR 20.4)
D) Yes, as the defendant’s additional claim for contribution or indemnity from another party (CPR 20.6)
E) Yes, as an ‘other’ additional claim (CPR 20.7)
B) Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
(Correct. Your client, Sue, is the claimant and Amir is the defendant. Amir is seeking to include a counterclaim against a person ‘other than the claimant’ (i.e. other than Sue, namely, the employer) where Sue and the employer are jointly involved in the situation. (CPR 20.5))
If an applicant makes a standard with notice interim application, what is the timeframe within which the applicant must serve a copy of the application notice and supporting documentation on the respondent?
A) As soon as practicable before the hearing
B) Not less than 3 clear days before the hearing
C) As soon as practicable but at least 3 clear days after issuing the application notice.
D) As soon as practicable but not less than 3 clear days before the hearing.
E) Not less than 14 clear days before the hearing
D) As soon as practicable but not less than 3 clear days before the hearing
(Correct: if an applicant makes a standard with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as practicable but not less than 3 clear days before the hearing (CPR 23.7))
The directions order confirms that witness statements are due to be exchanged in 5 days’ time. The applicant wishes to apply to the court for extra time to exchange witness statements. The parties have been unable to agree an extension of time. How would the applicant make an interim application to apply for an extension of time to exchange witness statements?
A) Without notice as the object of the order would be defeated by providing notice.
B) With notice by filing at court an application notice and a witness statement and paying a fee.
C) With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.
D) With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.
E) Without notice due to the urgency
C) With notice by filing at court an application notice, a witness statement and a draft order and paying a fee
(Correct: an interim application is made by filing at court an application notice, a witness statement and a draft order and paying a fee)
The directions order confirms that witness statements are due to be exchanged in 5 days’ time. The applicant wishes to apply to the court for extra time to exchange witness statements. The parties have been unable to agree an extension of time. How would the applicant make an interim application to apply for an extension of time to exchange witness statements?
A) Without notice as the object of the order would be defeated by providing notice.
B) With notice by filing at court an application notice and a witness statement and paying a fee.
C) With notice by filing at court an application notice, a witness statement and a draft order and paying a fee.
D) With notice by filing at court an application notice endorsed with a hearing date, a witness statement, a draft order and paying a fee.
E) Without notice due to the urgency
C) With notice by filing at court an application notice, a witness statement and a draft order and paying a fee
(Correct: an interim application is made by filing at court an application notice, a witness statement and a draft order and paying a fee)
How, if at all, will a respondent know what evidence has been put forward by the applicant in support of a without-notice application?
A) The evidence will be served on the respondent after the hearing
B) The respondent will not know what evidence has been put forward in support of a without-notice application
C) The evidence will be served on the respondent before the hearing
A) The evidence will be served on the respondent after the hearing
(Correct. The applicant must serve the application notice, evidence in support and order on the respondent as soon as possible after the hearing (CPR 23.9))
The claimant files a claim form and particulars of claim. The defendant files an acknowledgment of service indicating an intention to defend the claim. The claimant applies for summary judgment. Both parties attend the summary judgment hearing where the judge dismissed the application and makes a costs order. What order is the court most likely to make next?
A) Conditional order
B) Directions order for the defendant to file and serve its defence
C) Order the parties to file a statement of costs
D) Allocation to a track
E) Order to set aside the summary judgment hearing
B) Directions order for the defendant to file and serve its defence
(A directions order for the defendant to file and serve its defence is correct. The summary judgment application was made before the defendant filed its defence and therefore the time for the defendant to file its defence is extended until after the summary judgment hearing (CPR 24.4(2)). The court has made a decision on summary judgment for dismissal of the application and so the claim will continue. The court may give directions for the defendant to file and serve the defence as this has not already taken place. An order to set aside the summary judgment hearing is incorrect as there is nothing on the facts to suggest this is appropriate e.g. both parties attended the summary judgment hearing. A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Allocation to a track is incorrect. Whilst the court will delay allocating the matter to a track until after the summary judgment hearing, it will want to see the defendant’s case (in the defence) first. Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing)
When is the first opportunity to a claimant can apply for summary judgment against the defendant without needing the court’s permission?
A) After the claimant has filed particulars of claim.
B) Any time after proceedings have commenced.
C) After the defendant has filed an acknowledgment of service.
D) At the same time as filing the directions questionnaire.
E) After the defendant has filed an acknowledgment of service or a defence.
E) After the defendant has filed an acknowledgment of service or a defence
(The correct answer is the claimant can apply for summary judgment ‘after the defendant has filed an acknowledgment of service or a defence’ (CPR 24.4). To apply before this, the court’s permission would be needed. An incorrect answer is ‘after the defendant has filed an acknowledgment of service’ as this is not the best answer; the defendant could choose to only file a defence which would then be the trigger for the first opportunity a claimant has to apply for summary judgment. An incorrect answer is ‘after the claimant has filed particulars of claim’ as the trigger is a step by the defendant, not the defendant. An incorrect answer is ‘any time after proceedings have commenced’; this is the rule for when the defendant can first apply for summary judgment, not the claimant. An incorrect answer is ‘at the same time as filing the directions questionnaire’; this is often an ideal time for either party to apply for summary judgment, but it is not the first opportunity)
The claimant ordered 20,000 laptops from the defendant. The laptops malfunction. The claimant issues a claim against the defendant claiming that 20,000 laptops are faulty. The defendant files a defence. The claimant believes that the defendant is entirely at fault and applies for summary judgment. If the claimant’s summary judgment application is successful, which order is most likely to be made by the court?
A) Dismissal of the application
B) Conditional order
C) Dismissal of the claim
D) Judgment on the claim
E) Judgment on part of the claim
D) Judgment on the claim
(The correct answer is judgment on the claim. The claimant’s claim is in relation to 20,000 laptops (the entire order) and so, if successful on summary judgment, the claimant will get judgment on the claim and the entire claim is over. Dismissal of the claim is incorrect as this would be appropriate where the defendant successfully applies for summary judgment; it is the claimant who has applied here. Dismissal of the application is incorrect as this is appropriate where either the claimant or defendant’s application for summary judgment has failed, the summary judgment application is dismissed and the claim continues to trial. Conditional order is incorrect as there is nothing on the facts to suggest that the judge is not wholly convinced of the merits of one party’s case necessitating conditions ordered by the court. Judgment on part of the claim is incorrect because there are problems with the entire order of 20,000 laptops. There is nothing on the facts yet to suggest that part of the order is not faulty)
The court must not make an interim payment of more than________________________ .
Choose the correct missing words to complete the sentence.
A) A reasonable proportion of the estimated costs
B) A reasonable proportion of the likely amount of the final judgment
C) 66% of the likely amount of the final judgment
D) A reasonable proportion of the sum claimed by the claimant
B) A reasonable proportion of the likely amount of the final judgment
(Correct. See CPR 25.7)
Which of the following IS NOT one of the conditions on which an application for an interim payment can be based?
A) The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
B) It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment.
C) The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial.
D) The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed
C) The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial
(Correct. This IS NOT one of the conditions on which an application for an interim payment can be based. It is part of the rules relating to summary judgment. All the other answers are conditions on which an application for an interim payment can be based)
You act for a claimant in a personal injury claim. The claimant was badly injured by the defendant in a road traffic accident several months ago. The defendant has admitted liability in its defence. The claim is now at the case management stage. The claimant has not yet been able to return to work due to injuries sustained in the accident and has used all their savings to live on since the accident. The claimant has to move into new rented accommodation and needs money for the deposit and general expenditure for food and travel. Can the claimant apply to the court for an interim payment from the defendant at this stage of the proceedings?
A) Yes, because the period for filing an acknowledgment of service has expired.
B) Yes, because the period for filing a defence has expired.
C) No, because a final judgment has not been made against the defendant.
D) No, because the claimant can only claim an interim payment pre-action.
E) No, because the claimant cannot claim an interim payment during proceedings.
A) Yes, because the period for filing an acknowledgment of service has expired
(Correct. The claimant can apply to the court for an interim payment from the defendant because the period for filing an acknowledgment of service has expired an application for an interim payment can be made after this stage of the proceedings has been reached (CPR 25.6).
The incorrect answers are: Yes, the period for filing a defence has expired; this is not the rule (CPR 25.6). No, because the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek financial assistance on account of damages in certain situations during proceedings (CPR 25.6). No, because the claimant cannot claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. No, because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, this would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6)
The claimant has made a personal injury claim against the defendant. The court has ordered judgment on liability in favour of the claimant, but the amount of damages have yet to be assessed. The claimant would like an interim payment as soon as possible and so asks the defendant for an interim payment. What is the best course of action for the claimant if the defendant does not agree to voluntarily make an interim payment?
A) Apply to the court for an interim payment as the defendant has admitted liability.
B) Do not apply to the court for an interim payment and wait until damages are assessed.
C) Apply to the court for an interim payment as the claimant is entitled to an interim payment in a personal injury claim.
D) Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.
E) Apply to the court for an interim payment as if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant.
D) Apply to the court for an interim payment as the claimant has obtained judgment against the defendant.
(Correct – the best course of action for the claimant to take if the defendant does not agree to voluntarily make an interim payment is to apply to the court. The claimant must satisfy one of the prescribed conditions (CPR 25.7) and, on the facts, has done this as the claimant has obtained judgment against the defendant.
The other options were not the best course of action: • The claimant cannot apply to the court for an interim payment as, on the facts, the defendant has not admitted liability. • The claimant cannot apply to the court for an interim payment as you are not given any facts to suggest that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant. • It is incorrect to say that a claimant is entitled to an interim payment in a personal injury claim. One of the prescribed conditions (CPR 25.7) must be satisfied in any type of claim. • It is not the best course of action to say ‘do not apply to the court for an interim payment and wait until damages are assessed’ because if one of the prescribed conditions (CPR 25.7) applies, the claimant has a choice to apply for an interim payment)
The defendant must satisfy the court of two matters before an order for security for costs can be made. One or more of the prescribed conditions in the rules must be satisfied, and having regard to all the circumstances, it must be ________ to make an order.
Choose the correct missing word to complete the sentence.
A) Proportionate
BJ Necessary
C) Reasonable
D) Just
D) Just
(Correct. See CPR 25.13. It would be wrong to say that it must be ‘necessary’. Whether it is ‘reasonable’ and ‘proportionate’ will be relevant considerations, and part of considering what is ‘just’, but ‘just’ is the key concept)
The claimant company is a breakfast cereal manufacturing company. The claimant has issued proceedings to claim losses of £200,000 from the defendant, a grain supplier, for breach of contract. You act for the defendant who has submitted its defence. Yesterday, a leading food trade magazine published an article about the claimant’s inability to meet customer demand for breakfast cereal and that it is experiencing cashflow difficulties. The defendant has therefore today checked the claimant’s most recent annual accounts filed at Companies House which show a loss of £215,000.
What would be the most appropriate interim application that the defendant might make?
A) Extension of time to submit its defence
B) Interim payment
C) Security for costs
D) Interim prohibitory injunction
E) Interim mandatory injunction
C) Security for costs
(Correct – security for costs – because, if successful, a security for costs order would require the claimant to pay a sum of money into court (or by some other manner) to protect the defendant should it successfully defend the claimant’s case and be awarded costs. The defendant wants this protection as it has reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so.
The other options were incorrect: Interim payment is incorrect because that is an application made by a claimant (for an interim payment on account of damages which the defendant may be held liable to pay). Interim prohibitory injunction is incorrect because the defendant does not need an order from the court to require the claimant to refrain from doing an act which is causing irreparable or immeasurable damage to the defendant . Interim mandatory injunction is incorrect because the defendant does not need an order from the court to require the claimant to do an act to avoid causing irreparable or immeasurable damage to the defendant. Extension of time to submit its defence (CPR 3.1) is incorrect because the defendant has already filed its defence and so does not need extra time to do so)
