W1 MCQ (Pre-Action Conduct)

Question 1

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 party failing to comply could be penalised in interest.

C. The claim could be struck out.

D. The party failing to comply could be penalised in costs.

Answer 1

C. The claim could be struck out.

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.

Question 2

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 imminent expiry of a limitation period.

C. The defendant refusing to contemplate settlement of the claim.

Answer 2

B. The imminent expiry of a limitation period.

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.

Question 3

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 28 days.

C. as soon as possible.

D. within 14 days.

Answer 3

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).

Question 4

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 can be issued in either the County Court or the High Court.

B. The claim must be issued in the County Court.

C. The claim must be issued in the High Court.

D. The claim should be issued in the Chancery Division of the High Court.

E. The claim should be issued in a specialist division of the County Court.

Answer 4

A. The claim can be issued in either the County Court or the High Court.

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.

Question 5

Which of the following is NOT 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 claimant believes that the claim ought to be dealt with by a High Court judge.

B. The financial value of the claim.

C. The importance of the outcome to the public.

D. The availability of High Court resources (at the time of issue).

E. The complexity of the procedures involved.

Answer 5

D. The availability of High Court resources (at the time of issue).

The relevant rules do not indicate that this is a potential justification.

Question 6

In order to avoid a limitation defence, what must be done before the limitation date?

A. The claim form must be issued.

B. The particulars of claim must be served.

C. The particulars of claim must be filed at court.

D. The claim form must be served.

E. The claim form and particulars of claim together must be filed and served.

Answer 6

A. The claim form must be issued.

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).

Question 7

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 by any of the methods listed in the other answers.

B. Service by depositing the claim form at the usual or last known residence of the individual.

C. Personal service on the individual.

D. Service on the business address of the solicitor.

E. Service by post to the usual or last known residence of the individual by post.

Answer 7

D. Service on the business address of the solicitor.

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).

Question 8

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. …when the limitation period expires.

D. …the date of last correspondence with the defendant.

Answer 8

A. …when the claim form was issued.

Question 9

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

Answer 9

D. …within 14 days of service of the claim form, and also within 4 months of the claim being issued

Question 10

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. 3

B. 2

C. 4

D. 6

Answer 10

C. 4

Question 11

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. Sunday 21 October.

C. Monday 22 October.

D. Friday 19 October.

E. Tuesday 23 October.

Answer 11

E. Tuesday 23 October.

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.

Question 12

A defence is posted (second class) on Thursday 1 November. When is it deemed served?

A. Monday 5 November.

B. Thursday 1 November.

C. This is not an acceptable mode of service – it will not be deemed served at all.

D. Friday 2 November.

E. Saturday 3 November.

Answer 12

C. This is not an acceptable mode of service – it will not be deemed served at all.

Second class post is not an acceptable method of service, only first class post.

Question 13

A witness statement properly addressed is collected by the DX service on Friday 4 March. When is it deemed served?

A. Tuesday 8 March

B. Saturday 5 March

C. Friday 4 March

D. Monday 7 March

E. Sunday 6 March

Answer 13

D. Monday 7 March

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.

Question 14

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, regardless of whether that day is a business day or not.

B. 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.

C. 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.

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 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.

Answer 14

E. 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

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.

Question 15

Which of the following lists are all statements of case?

A. Particulars of claim and Witness statement

B. Defence and Expert’s report

C. Claim form and Reply to defence

D. Acknowledgment of service and Defence

Answer 15

C. Claim form and Reply to defence

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.

Question 16

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. Tell the defendant

B. Apply to the court for an amendment

C. Withdraw its claim

Answer 16

B. Apply to the court for an amendment

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.

Question 17

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. Costs sanctions

B. Nothing. The statement of case is the responsibility of the solicitor.

C. The case is struck out

D. Proceedings for contempt of court

Answer 17

D. Proceedings for contempt of court

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.

Question 18

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 (a Firm)

B. Angela Smith and Brian Jones trading as AB Partnership

C. (1) Angela Smith (2) Brian Jones

D. AB Partnership Limited

E. AB Partnership LLP

Answer 18

A. AB Partnership (a Firm)

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.

Question 19

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. Interest and costs only.

D. Contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only.

E. 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.

Answer 19

E. 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.

These items should be disregarded for the purposes of the statement of value in the claim form (CPR 16.3(6)).

Question 20

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. Simple debt claim

D. Professional negligence claim

E. Personal injury claim for a brain injury

Answer 20

C. Simple debt claim

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.

Question 21

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 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.

B. 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.

C. 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.

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 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 s69 County Courts Act 1984.

Answer 21

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 s35A Senior Courts Act 1981.

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.

Question 22

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. Particulars of an oral agreement

B. Written agreement

C. An expert’s opinion

D. Particulars of the conduct relied on

E. A witness statement

Answer 22

B. Written agreement

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.

Question 23

What is the purpose of the prayer in the particulars of claim?

A. A summary of the interest sought by the claimant

B. A summary of the relief sought by the claimant

C. A summary of the duty, breach, causation and loss

D. A summary of the parties

E. A summary of the damages sought by the claimant

Answer 23

B. A summary of the relief sought by the claimant

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.