Formative MCQ

Question 1

A motorcyclist was involved in a road traffic accident on 5 May 2018 caused by a driver not exercising the care required. The parties exchanged names and contact details on the scene. The motorcyclist immediately suffered headaches and sickness but did not seek medical attention for these until 12 July 2018, by which time these symptoms had persisted for more than two months.

What is the latest date the motorcyclist can bring a claim for damages for personal injuries against the driver?

A. 5 May 2019

B. 5 May 2024

C. 12 July 2021

D. 12 July 2024

E. 5 May 2021

Answer 1

E. 5 May 2021

This question tested your knowledge of, and ability to apply, the key provisions on limitation (Limitation Act 1980), in particular in relation to a tortious personal injury claim. This was covered in the element ‘Limitation’ in the topic ‘Pre-action considerations and conduct’.

Question 2

A logistics company claims a debt of £45,000 from a supermarket for delivery services which have not been paid for. The supermarket is defending the entire claim on the basis that payment is not yet due. It also pleads a set-off of £11,000 in a defence and counterclaim, alleging that it has suffered losses in that sum as a result of the deliveries being late, in breach of contract.

If the defendant succeeds in all aspects of its defence and counterclaim, what is the amount of the judgment?

Select one alternative:

A. Claimant pays the defendant £11,000 and the defendant pays the claimant £34,000.

B. Defendant pays the claimant £34,000

C. Claimant pays the defendant £56,000.

D. Claimant pays the defendant £11,000.

E. Neither party pays the other.

Answer 2

D. Claimant pays the defendant £11,000.

This question tested your understanding of the effect of a set-off and counterclaim. This was covered in the element ‘Statements of case – counterclaims and other possible statements of case’ in the topic ‘Statements of case’. The claimant claims £45,000. The defendant defends this on the basis that payment is not yet due. You are told that its defence succeeds in full. Therefore this claim fails. The defendant has its own claim for £11,000, for damages for breach of contract. This claim succeeds, so the claimant is ordered to pay the defendant £11,000. So the overall effect is that the claimant must pay the defendant £11,000. The set-off would be relevant if the primary defence (payment is not yet due) did not succeed in full, because then this additional defence might be relied on to reduce the claimant’s claim. But on these facts, it is not relevant.

Question 3

A technology company has been working in a joint venture with a robotics company developing robots for use in hospitals. The two have developed a disagreement about the future of the joint venture. The robotics company is threatening to enter into a new joint venture with a private hospital, and to disclose confidential information about the robots with that hospital imminently. The technology company alleges that this would be a breach of the joint venture agreement and extremely harmful. It wishes to prevent this disclosure from taking place. It has a very strong claim. It is preparing court proceedings urgently.

For what is it most appropriate for the technology company to apply, to prevent this disclosure?

Select one alternative:

A. A final prohibitory injunction.

B. Summary judgment.

C. Permission to issue proceedings without complying with the practice direction on pre-action conduct.

D. An early (expedited) trial date.

E. An interim prohibitory injunction.

Answer 3

E. An interim prohibitory injunction.

This was covered in the element ‘Interim injunctions’ in the topic ‘Interim remedies’. An interim prohibitory injunction is an order preventing a party from doing a stated act pending determination of the dispute at trial. It is the best application on the facts stated. Summary judgment is likely to take longer, and these facts suggested the utmost urgency. A final prohibitory injunction might be awarded at trial, but that is much too late – the damage will likely be done by then. An early expedited trial date is a good idea, and this might be ordered alongside an interim prohibitory injunction, but even an early trial will be months away, which is too far on these facts. The court’s permission is not required in order to issue proceedings without complying with the practice direction on pre-action conduct – a party simply needs to assess for itself the risks of that course of action. On these facts, it seems entirely justified.

Question 4

A clothing manufacturer brings a breach of contract claim against a distributor, claiming £45,000. The claim has been provisionally allocated to the multi-track, and a case management conference has been listed to take place in 3 weeks’ time.

What should each party do in relation to disclosure in advance of the case management conference?

Select one alternative:

A. File and serve draft directions and then seek to agree a proposal for disclosure.

B. File and serve a disclosure report including a proposal for disclosure and then seek to agree a proposal for disclosure.

C. Seek to agree a proposal for disclosure before the case management conference, and if a proposal is agreed, should file and serve a disclosure report including a proposal for disclosure.

D. Discuss whether to depart from the usual order which is for standard disclosure, and if so, file directions to that effect.

E. File draft directions at court.

Answer 4

B. File and serve a disclosure report including a proposal for disclosure and then seek to agree a proposal for disclosure.

This question tested your knowledge and understanding of the early case management procedure on the multi-track, in particular in relation to guiding the parties to an appropriate disclosure order at the case management conference. This was covered in the element ‘Early case management on the multi-track’ in the topic ‘Case management’. You may also find the element ‘Sources and types of disclosure obligation’ in the topic ‘Disclosure and inspection’ useful. The procedure to be followed in relation to disclosure in advance of a case management conference on the multi-track (unless the proceedings include a claim for personal injuries) is that the parties need to file a disclosure report not less than 14 days before the case management conference and discuss and seek to agree a proposal in relation to disclosure not less than 7 days before the case management conference (CPR 31.5(3) – (8)).

Question 5

A retail company wishes to bring a claim against one of its suppliers for breach of contract. The retail company intends to claim £105,000 damages and £5,000 interest. It considers the claim to be straightforward. Limited witness evidence will be required, and there are no issues that require expert evidence.

What is the best advice for the retail company as to which court it should start the claim in?

Select one alternative:

A. The retail company can choose to bring the claim in the High Court or the County Court, but the High Court is more appropriate.

B. The retail company can choose to bring the claim in the High Court or the County Court, but the County Court is more appropriate.

C. The retail company should seek guidance from the High Court as to whether it will accept the claim.

D. The retail company must bring the claim in the High Court.

E. The retail company must bring the claim in the County Court.

Answer 5

B. The retail company can choose to bring the claim in the High Court or the County Court, but the County Court is more appropriate.

This question required you to understand the jurisdiction of the County Court and High Court and how to approach the matter when both courts have jurisdiction. This is covered in the element ‘Where and how to issue the claim’ in the topic ‘Commencing and serving proceedings’.

Question 6

A driver carelessly hits a pedestrian when mounting the pavement during a manoeuvre. The claimant brings a personal injury claim against the defendant. The defendant knows he was at fault and does not wish to dispute this but is surprised by the extent of the injuries allegedly suffered by the claimant and is not convinced that they are as extensive as alleged.

How should the defendant respond to the paragraph of the particulars of claim which states the extent of the claimant’s injuries caused by the defendant’s negligence?

Select one alternative:

A. Deny the extent of the injuries allegedly caused by the defendant’s negligence and state that the injuries are inconsistent with the accident caused by the defendant.

B. Require proof of the extent of the injuries allegedly caused by the defendant’s negligence and state that the injuries are inconsistent with the accident caused by the defendant.

C. Require proof of the extent of the injuries allegedly caused by the defendant’s negligence.

D. Deny the extent of the injuries allegedly caused by the defendant’s negligence.

E. Admit the extent of the injuries caused by the defendant’s negligence.

Answer 6

C. Require proof of the extent of the injuries allegedly caused by the defendant’s negligence.

This question tested your understanding of how to draft a defence. This was covered in the element ‘Defences’ in the topic ‘Statements of case’.

Feedback on Deny the extent of the injuries allegedly caused by the defendant’s negligence and state that the injuries are inconsistent with the accident caused by the defendant.
Incorrect. It would be wrong to deny the extent of the injuries as the facts are not within the defendant’s knowledge.

Feedback on Require proof of the extent of the injuries allegedly caused by the defendant’s negligence and state that the injuries are inconsistent with the accident caused by the defendant.
Incorrect. When requiring proof, it is not necessary (and rarely appropriate) to give reasons / an alternative version of events.

Feedback on Require proof of the extent of the injuries allegedly caused by the defendant’s negligence.
Correct. It is appropriate to require proof of this paragraph because the defendant is unable to admit or deny the allegation. The driver has insufficient information to do. When requiring proof, it is not necessary (and rarely appropriate) to give reasons / an alternative version of events. It would be wrong to deny the extent of the injuries as the facts are not within the defendant’s knowledge. It would be wrong to admit the allegations because the defendant does not know them to be true and it would be harmful to the defendant’s case.

Feedback on Deny the extent of the injuries allegedly caused by the defendant’s negligence.
Incorrect. It would be wrong to deny the extent of the injuries as the facts are not within the defendant’s knowledge. If you did want to deny the allegation, reasons would need to be given.

Feedback on Admit the extent of the injuries caused by the defendant’s negligence.
Incorrect. It would be wrong to admit the allegations because the defendant does not know them to be true and it would be harmful to the defendant’s case.

Question 7

A technology firm entered into a contract with Supplier A under which Supplier A agreed to deliver a consignment of computer chips on 22 April 2020. In breach of contract Supplier A did not deliver the computer chips. On 29 April 2020 the technology firm entered into a contract with Supplier B to provide similar computer chips at twice the price agreed with Supplier A. The technology firm intends to bring a claim against Supplier A for breach of contract.

What is the latest date the technology firm can bring the claim against Supplier A for breach of contract?

Select one alternative:

A. 28 April 2023

B. 22 April 2026

C. 21 April 2026

D. 29 April 2026

E. 22 April 2023

Answer 7

B. 22 April 2026

This question tested your knowledge of, and ability to apply, the key provisions on limitation (Limitation Act 1980), in particular in relation to a contractual claim. This was covered in the element ‘Limitation’ in the topic ‘Pre-action considerations and conduct’.

Unanswered
Feedback on 28 April 2023
Incorrect. In contract claims, the limitation period is 6 years from the date of the breach of contract and you may not have understood when time begins to run. Revisit your materials in relation to limitation.

Answered and correct
Feedback on 22 April 2026
Correct. In contract claims, the limitation period is 6 years from the date of the breach of contract, which in this case was the date the consignment of computer chips should have been delivered (22 April). Time starts running for limitation purposes from the day after the breach, hence the deadline is 22 April 2026 and not 21 April 2026.

Unanswered
Feedback on 21 April 2026
Incorrect. You are correct that in contract claims, the limitation period is 6 years from the date of the breach of contract. However, look back at your materials to see when the time starts running from for limitation purposes so you can calculate the deadline accurately. Revisit your materials in relation to limitation.

Unanswered
Feedback on 29 April 2026
Incorrect. You are correct that in contract claims, the limitation period is 6 years from the date of the breach of contract. Look again at the facts to identify when the breach occurred. Revisit your materials in relation to limitation.

Unanswered
Feedback on 22 April 2023
Incorrect. In contract claims, the limitation period is 6 years from the date of the breach of contract. Revisit your materials in relation to limitation.

Question 8

A passenger in a road traffic accident commences proceedings in the County Court against the driver seeking damages to be assessed. The claim form indicates that the claimant expects to recover in excess of £25,000. The claim form and particulars of claim are served on the defendant. The defendant admits the whole of the claim but does not offer a sum in satisfaction of the claim.

What should happen next following the defendant’s admission?

Select one alternative:

A. There is no need for the claimant to take action in relation to the admission. The court will automatically arrange a hearing to consider judgment on liability and quantum.

B. The claimant should make a request for judgment. The court will then enter judgment on liability with quantum to be decided at a hearing.

C. The claimant should make a request for judgment. The court will then arrange a hearing to determine liability and quantum.

D. There is no need for the claimant to take action in relation to the admission. The court will automatically enter judgment on liability with quantum to be decided at a later hearing.

E. There is no need for the claimant to take action in relation to the admission. The court will automatically enter judgment on liability and quantum.

Answer 8

B. The claimant should make a request for judgment. The court will then enter judgment on liability with quantum to be decided at a hearing.

This question tested your knowledge and understanding of the procedure when an unspecified claim is admitted in full (CPR 14.2). This is covered in the element ‘Admitting the claim’ in the topic ‘Responding to proceedings’. Where an unspecified claim is admitted and the defendant does not offer a sum of money in satisfaction of the claim, the claimant may request judgment by filing a request in the relevant practice form (this is not automatic) and that judgment (ie on liability) will be for an amount to be decided by the court and costs.

Question 9

A software company wishes to defend proceedings brought by a customer in negligence. It filed an acknowledgment of service and then also agreed an extension of 21 days for filing and serving the defence. It needs a further 14 days in order to finalise the defence.

What is the most appropriate next step for the software company to take?

Select one alternative:

A. Write to the building company seeking its approval to a further 14-day extension of time and then, assuming approval is given, notify the court of the extension.

B. Make an application to the court for a further 14-day extension of time (and ask the claimant to consent to that application).

C. File its defence within the time period originally agreed (because it is not possible to obtain a further 14-day extension of time) and apply to amend it later if necessary.

D. File and serve the draft defence within the time period originally agreed (because it is not possible to obtain a further 14-day extension of time), and file and serve the final defence as soon as possible after that.

E. File its defence when it has completed it and, if this is outside the time period required by the CPR, make an application to the court for relief from sanctions.

Answer 9

B. Make an application to the court for a further 14-day extension of time (and ask the claimant to consent to that application).

This question tested your understanding of the power of the parties to agree extensions of time for filing and serving a defence, and the court’s power to grant such extensions. This was covered in the element ‘Acknowledging and defending the claim’ in the topic ‘Responding to proceedings’. The parties can agree an extension of time for filing and serving the defence of 28 days, but beyond this, an application to court is required, even if the parties agree. The period required in this case is 35 days, so an application is required. Assuming that approach is followed, there is no need to file and serve a defence in haste (which is likely to require later amendment) nor to apply for relief from sanctions. Apart from it being unwise to file and serve a draft of any document (in case it reveals something that is later regretted), serving a draft and then a revised document later is not permitted.

Question 10

The claimant in a personal injury claim files an application for summary judgment and is given a hearing date of Thursday 28 November for that application.

Assuming that the claimant is responsible for giving the defendant notice of that hearing, what is the latest day by which the claimant must give that notice?

Select one alternative:

A. Wednesday 13 November

B. Friday 22 November

C. Thursday 14 November

D. Wednesday 20 November

E. Monday 25 November

Answer 10

A. Wednesday 13 November

This question tested your knowledge of the procedural requirements for an application for summary judgment. This was covered in the element ‘Summary judgment’ in the topic ‘Early disposal’. It also required you to understand how to ‘count time’ (CPR 2.8), and this was covered in the element ‘Acknowledging and defending the claim’ in the topic ‘Responding to proceedings’. Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days’ notice of (a) the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the hearing (CPR 24.4(3)). When counting a period of time which ends on a hearing, the day of the hearing is excluded from the count, as is the day you start counting at the start of the period, so 14 days takes you to Wednesday 13 November.

Question 11

You are instructed by the claimant company, a supplier of goods to nightclubs, which has brought proceedings to recover the sum of £45,000 from a nightclub operator. The claimant has reviewed the nightclub operator’s annual accounts which show that the nightclub operator has sustained a loss in each of the last three trading years and has almost no assets. The nightclub operator is defending the claim and the claimant is concerned that the nightclub operator will be unable to pay the claimant’s costs if ordered to do so.

What is the best advice to give to the claimant in relation to trying to improve its position in relation to costs recovery?

Select one alternative:

A. The claimant should not apply for security for costs because the nightclub operator’s annual accounts are not relevant in assessing the nightclub operator’s financial position.

B. The claimant should not apply for security for costs because there is no basis for such an application.

C. The claimant should apply for security for costs because this will bring the proceedings to a quicker conclusion.

D. The claimant should apply for security for costs because this will provide a sum of money (or other security) which will later be available to satisfy a costs order.

E. The claimant should apply for security for costs because this will stop the defendant from dissipating any remaining assets.

Answer 11

B. The claimant should not apply for security for costs because there is no basis for such an application.

This question tested your understanding of when security for costs can be obtained and the effect of an order for security for costs. This was covered in the element ‘Security for costs’ in the topic ‘Interim remedies’. In proceedings such as these, without any counterclaim, there is no basis for a claimant seeking security for costs from a defendant. Only the defendant can seek security (from the claimant). So there is no basis for an application on these facts. In circumstances when security for costs is obtained, it provides a sum of money (or other security) which will later be available to satisfy a costs order. It does not necessarily stop the defendant dissipating any remaining assets nor bring the proceedings to a quick conclusion (although it could, indirectly, have either or both of those effects). Annual accounts are usually highly relevant in assessing a party’s financial position

Question 12

On Monday 1 February, the Claimant issued a Claim Form in the High Court against the Defendant claiming £24,000 in damages. The Claim Form was served by first class post on the Defendant, being posted on Tuesday 2 February. Particulars of claim have not yet been prepared. Today’s date is Wednesday 17 February. The Defendant has not acknowledged service nor entered a Defence.

Can the Claimant obtain judgment in default?

Select one alternative:

A. No, because the time period for responding has not yet started to run.

B. Yes, because the time period for responding elapsed 1 day ago.

C. No, because the time period for responding will not elapse until tomorrow.

D. Yes, because the time period for responding elapsed 2 day ago.

E. No, because the time period for responding will elapse at the end of today.

Answer 12

A. No, because the time period for responding has not yet started to run.

This question required you to understand what document the defendant must respond to in the proceedings. This was covered in the element ‘Introduction to responding to proceedings’. It also required you to know what default judgment is. This was covered in the element on ‘Default judgment’.

Feedback on No, because the time period for responding has not yet started to run.
Correct. The Defendant does not need to respond to proceedings until particulars of claim are served (CPR 9.1) so judgment in default is not possible (CPR 12).

Feedback on Yes, because the time period for responding elapsed 1 day ago.
Incorrect, please check your materials regarding Judgment in Default (CPR 12) as well as your element ‘Introduction to responding to proceedings’.

Feedback on No, because the time period for responding will not elapse until tomorrow.
Incorrect, please check your materials regarding Judgment in Default (CPR 12) as well as your element ‘Introduction to responding to proceedings’.

Feedback on Yes, because the time period for responding elapsed 2 day ago.
Incorrect, please check your materials regarding Judgment in Default (CPR 12) as well as your element ‘Introduction to responding to proceedings’.

Feedback on No, because the time period for responding will elapse at the end of today.
Incorrect, please check your materials regarding Judgment in Default (CPR 12) as well as your element ‘Introduction to responding to proceedings’.

Question 13

Your client is the claimant in a breach of contract action. They want to make an immediate application to the master for summary judgment against the defendant. Service of the acknowledgment of service has just taken place, indicating that the defendant intends to defend the claim.

What is the most likely costs order which the master will make if the client’s application fails at a hearing of an application for summary judgment?

Select one alternative:

A. A wasted costs order.

B. Costs of the application to the defendant, in any event.

C. Defendant’s costs in the case.

D. No order as to costs.

E. Costs of the application to the claimant, in any event.

Answer 13

B. Costs of the application to the defendant, in any event.

This question was about the likely costs order following an unsuccessful application for Summary Judgment. This was covered in the element ‘Overview of costs’ in the topic ‘Costs’.

Feedback on A wasted costs order.
Incorrect. Wasted costs orders are made only where the party’s legal representative is held personally liable for costs by the court. Please review your materials on cost orders and ensure that you know and understand the relevant principles and rules that will apply in this situation.

Feedback on Costs of the application to the defendant, in any event.
Correct. This means the claimant will have to pay the costs of the unsuccessful application to the defendant. This would be the ‘usual rule’ given that the application has been unsuccessful (CPR 44.2 and 44 PD 4.2), and is especially likely given that the application was made before the defence was filed.

Feedback on Defendant’s costs in the case.
Incorrect. The effect of this order would be that if the defendant is awarded costs at the end the proceedings, it would be entitled to its costs of the application but if the claimant is awarded costs at the end of the proceedings, the claimant would not be entitled to its costs of the application. This is a less likely order than the correct answer. Please review your materials on cost orders and ensure that you know and understand the relevant principles and rules that will apply in this situation.

Feedback on No order as to costs.
Incorrect. It is likely a costs order would be made. Please review your materials on cost orders and ensure that you know and understand the relevant principles and rules that will apply in this situation.

Feedback on Costs of the application to the claimant, in any event.
Incorrect. The claimant will not get the costs of the application if their application is dismissed (CPR 44.2 and 44 PD 4.2). Please review your materials on cost orders and ensure that you know and understand the relevant principles and rules that will apply in this situation.

Question 14

A homeowner has issued and served the claim form and particulars of claim in relation to defective building works carried out 2 months ago at the homeowner’s home. The two defendants are a plumber and an electrician, and each is alleged to have negligently contributed to the defects. The claimant wishes to amend the particulars of claim to correct small errors in the way the defective electrical works are described.

From whom does the homeowner require permission or consent to make this amendment?

Select one alternative:

A. From the court, the electrician and the plumber.

B. From the court or the electrian and plumber

C. From either the court or the electrician.

D. From the court.

E. From the electrician and the plumber.

Answer 14

B. From the court or the electrian and plumber

This question tested your understanding of amendments to statements of case (CPR 17), in particular where there are no changes to parties or causes of action, and no limitation issues. This was covered in the element ‘Amending statements of case and changing parties’ in the topic ‘Statements of case’. If his statement of case has been served, a party may amend it only – (a) with the written consent of all the other parties; or (b) with the permission of the court (CPR 17.1(2)). The proposed amendment is to the particulars of claim, and these have already been served. Accordingly, either the written consent of all parties, or the permission of the court, is required – but not both. Note the reference to ALL parties (ie plumber and electrician), not just the party who seems to be affected by the amendments.

Question 15

The claimant in a £2,500,000 damages claim was due to file and exchange its costs budget (Precedent H) by 4.30pm on Monday 15 June. Solicitors for the claimant served and filed this on Tuesday 16 June at 1.30pm. The reason for the delay was that the claimant’s original expert witness became incapacitated, necessitating the claimant finding a last minute suitably qualified replacement.

Solicitors for the defendant have indicated that they do not consent to the late service and filing of the claimant’s precedent H and will expect the usual sanction to apply.

What advice should you give to the claimant about any application required in relation to its budget?

Select one alternative:

A. The appropriate application is for relief against sanction. This application is likely to be successful.

B. The appropriate application is for an extension of time for exchange and filing of the Precedent H. This application is likely to be successful.

C. The appropriate application is for relief against sanction. This application is unlikely to be successful.

D. No application by the claimant is required. The claimant should wait for the defendant to make an application to court for an order that the sanction will be applied, and oppose that application.

E. The appropriate application is for an extension of time for exchange and filing of the Precedent H. This application is likely to be unsuccessful.

Answer 15

A. The appropriate application is for relief against sanction. This application is likely to be successful.

This question is about applying for relief from sanction having missed a deadline for filing. This was covered in the element ‘Costs management – further detail’ in the topic ‘Costs management’, and in the element ‘Case management powers, sanctions and relief’ in the topic ‘Case management’. Unless otherwise ordered by the court, in this situation the usual sanction will apply (CPR 3.14). The effect of this is severe (no costs allowed for the claimant), so the claimant certainly needs to try to avoid this happening by making an application for relief. As the breach is not serious (a matter of hours late) or significant (no hearing date will be put at risk and the subsequent budget discussions and report (Precedent R) will be able take place as planned), under case law (the Denton principles), the relief should be granted at the first stage of the test derived from this judgment. Should the court not accept this at the first stage and move on to the remaining stages of the test (Denton), the reason for the delay is a good one, the value of the claim is significant and the disruption to the litigation minimal, so the court should still grant relief. The automatic sanction means that simply applying for an extension of time is not appropriate.

Question 16

A steel worker has issued and served proceedings against their employer alleging negligence. The steel worker is claiming £65,000 in relation to personal injuries. The employer denies entirely that it was negligent. The dispute is finely balanced. The claim is at the case management stage. The claimant needs a different car to be able to maintain mobility in light of their injuries but cannot afford to change cars. The cost of making the change would be much less than £65,000.

Does an application for an interim payment by the claimant have good prospects of success?

Select one alternative:

A. No, because although the necessary conditions for the court to order an interim payment are made out, the court is unlikely to exercise its discretion in favour of ordering this because the claim is too low in value.

B. No, because although the necessary conditions for the court to order an interim payment are made out, the court is unlikely to exercise its discretion in favour of ordering this because the application has been made too late.

C. Yes, because the necessary conditions for the court to order an interim payment are made out and therefore the claimant is entitled to an interim payment.

D. Yes, because the necessary conditions for the court to order an interim payment are made out and the court is likely to exercise its discretion in favour of ordering this.

E. No, because the necessary conditions for the court to order an interim payment are not made out

Answer 16

E. No, because the necessary conditions for the court to order an interim payment are not made out

This question tested your knowledge and understanding of the conditions that need to be satisfied before the court has a discretion to order an interim payment (CPR 25.7). This was covered in the element ‘Interim payments’, in the topic ‘Interim remedies’. If one of several conditions is satisfied, then the court has a discretion to order an interim payment. None of the conditions apply on these facts, and therefore the court has no option to order an interim payment. The court would have a discretion to order an interim payment only if one of these conditions was satisfied. The timing of the application would not be fatal if one of the necessary conditions was satisfied, although it would be a relevant consideration. The claim is not too low value for an interim payment.

Question 17

A claimant has made a claim for £20,000 against a defendant company in relation to a breach of contract. The court expects the trial to take 2 days. Expert evidence will be required from one expert on behalf of each party.

What is the normal track for this claim, the fast track or the multi-track?

Select one alternative:

A. The fast track, because of the expert evidence required.

B. The multi-track, because of the estimated length of trial.

C. The fast track, because of the value of the claim.

D. The multi-track, because of the value of the claim.

E. The multi-track, because of the expert of the evidence required.

Answer 17

B. The multi-track, because of the estimated length of trial.

This question required you to understand the considerations in determining the ‘normal’ track for a claim, and not limit your analysis to just the ‘value’ of the claim. This was covered in the element ‘Allocation to track’ in the topic ‘Case management’.

Feedback on The fast track, because of the expert evidence required.
Incorrect. From the point of view of expert evidence, this claim is suitable for the fast-track, but expert evidence is not the only relevant consideration. Revisit your materials on allocation (CPR 26.6).

Feedback on The multi-track, because of the estimated length of trial.
Correct. The fast track is suitable for claims (outside of the small claims track) with a value of £25,000 or less, but only if the requirements for length of trial and expert evidence are also limited as provided for in the rules (CPR 26.6(5)) in particular the trial is likely to last for no longer than one day. The trial in this case is likely to last 2 days, and therefore the fast track is not the normal track, and the multi-track is the normal track instead.

Feedback on The fast track, because of the value of the claim.
Incorrect. From the point of view of value, this claim is suitable for the fast-track, but value is not the only relevant consideration. Revisit your materials on allocation (CPR 26.6).

Feedback on The multi-track, because of the value of the claim.
Incorrect. The fact that the value is £20,000 does not mean that the multi-track is the normal track – considering value alone, the fast-track is the normal track (but the value is not the only relevant consideration). Revisit your materials on allocation (CPR 26.6).

Feedback on The multi-track, because of the expert of the evidence required.
Incorrect. The fact that expert evidence will be required from one expert on behalf of each party does not mean that the multi-track is the normal track. Revisit your materials on allocation (CPR 26.6).

Question 18

A software company wishes to bring a simple breach of contract claim against one of its main suppliers. It has just sent a letter to the proposed defendant detailing the basis upon which the claim is made, a summary of the facts and what it is looking for in terms of remedy. It also sets out how this figure is calculated.

Which of the following statements best describes what the defendant should do next?

Select one alternative:

A. The proposed defendant does not need to respond to the letter because it has not received sufficient details in relation to the claim.

B. The proposed defendant should respond to the letter within a reasonable time which is likely to be around 14 days.

C. The proposed defendant does not need to respond to the letter because proceedings have not yet been issued.

D. The proposed defendant does not need to respond to the letter because there is no specific pre-action protocol covering the subject of the claim.

E. The proposed defendant should respond to the letter within a reasonable time which is likely to be around three months.

Answer 18

B. The proposed defendant should respond to the letter within a reasonable time which is likely to be around 14 days.

Feedback
This question required an understanding of the existence, purpose and provisions of the Practice Direction on Pre-Action Conduct. This was covered in the element ‘Pre action conduct’ in the topic ‘Pre-action considerations and conduct’.

Feedback on The proposed defendant does not need to respond to the letter because it has not received sufficient details in relation to the claim.
This answer is incorrect. Please review your materials relating to pre-action conduct and in particular the Practice Direction on Pre-Action Conduct. You need to be able to recognise the steps that both parties should take prior to the commencement of proceedings where there is no specific pre-action protocol in place.

Feedback on The proposed defendant should respond to the letter within a reasonable time which is likely to be around 14 days.
Correct. Where there is no relevant pre-action protocol the parties should exchange correspondence and information to comply with the objectives in the Practice Direction on Pre-Action Conduct. Such steps will usually include a defendant responding to the initial letter of claim within a reasonable time – 14 days in a straightforward case as here and no more than three months in a very complex one.

Feedback on The proposed defendant does not need to respond to the letter because proceedings have not yet been issued.
This answer is incorrect. Please review your materials relating to pre-action conduct and in particular the Practice Direction on Pre-Action Conduct. You need to be able to recognise the steps that both parties should take prior to the commencement of proceedings where there is no specific pre-action protocol in place.

Feedback on The proposed defendant does not need to respond to the letter because there is no specific pre-action protocol covering the subject of the claim.
This answer is incorrect. Please review your materials relating to pre-action conduct and in particular the Practice Direction on Pre-Action Conduct. You need to be able to recognise the steps that both parties should take prior to the commencement of proceedings where there is no specific pre-action protocol in place.

Feedback on The proposed defendant should respond to the letter within a reasonable time which is likely to be around three months.
This answer is incorrect. Please review your materials relating to pre-action conduct and in particular the Practice Direction on Pre-Action Conduct. You need to be able to recognise the steps that both parties should take prior to the commencement of proceedings where there is no specific pre-action protocol in place.

Question 19

A pedestrian is involved in an accident with a motorist and a cyclist. The pedestrian commences proceedings against the motorist, and serves the claim form and particulars of claim on the motorist. On considering the motorist’s defence, the pedestrian wishes to add the cyclist as an additional defendant to the proceedings.

Does the pedestrian require permission or consent from the court or another party to add the cyclist as a defendant?

Select one alternative:

A. Permission / consent is not required from the court, motorist or cyclist.

B. Permission / consent from either the court or the cyclist is sufficient.

C. Permission / consent is needed from the court.

D. Permission / consent is needed from the cyclist.

E. Permission / consent from either the court or the motorist is sufficient

Answer 19

C. Permission / consent is needed from the court.

This question tested your understanding of the procedural requirements when a claimant seeks to add a party. This was covered in the element ‘Amending statements of case and changing parties’ in the topic ‘Statements of case’. The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served (CPR 19.4(1)). The claim form has been served in this case, and therefore the court’s permission is required. Whilst obtaining the motorist and/or cyclist’s consent to that application will give the application better prospects of success, their consent is neither necessary nor sufficient to add the party.

Question 20

A defendant to a personal injury claim considers that certain paragraphs of the particulars of claim are impossible to understand. The paragraphs concerned explain adaptations allegedly required to the claimant’s house as a result of the claimant’s injuries, the costs of which are being claimed in the proceedings. The explanations are in very technical language and full of abbreviations. The defendant has not yet filed a defence.

What action, if any, should the defendant take in relation to these paragraphs / the issues raised in these paragraphs specifically?

Select one alternative:

A. Request disclosure in relation to the adaptations when the proceedings reach the disclosure stage (and apply to court at that stage, if necessary).

B. Serve a request for further information (and apply to court for this if necessary).

C. Request disclosure of documents evidencing the adaptations now (and apply to court for this if necessary).

D. Apply for strike out (unless the claimant will concede this).

E. Apply for summary judgment (unless the claimant will concede this).

Answer 20

B. Serve a request for further information (and apply to court for this if necessary).

This question required you to understand requests for further information (CPR 18) and to understand the limitations of applying for strike out of proceedings, summary judgment or disclosure. This was covered primarily in the element ‘Requests for further information’ in the topic ‘Statements of case’.

Feedback on Request disclosure in relation to the adaptations when the proceedings reach the disclosure stage (and apply to court at that stage, if necessary).
Waiting until the disclosure stage in the proceedings is too late to achieve the understanding which the defendant seeks. Revisit your materials in relation to statements of case.

Feedback on Serve a request for further information (and apply to court for this if necessary).
Correct. The court has power to order a party to clarify any matter in dispute or provide additional information in relation to any such matter (CPR 18). The defendant will not be able to prepare its defence without understanding the particulars. A request for further information is the best way to arrive at a position of understanding –receiving disclosure now is not necessary to achieve this end and is likely to be disproportionately costly. Waiting until the disclosure stage in the proceedings is too late. Applying for summary judgment or strike out could be considered if the claimant is unable or unwilling to clarify its statement of case, but should not be the starting point, because again, they are disproportionate mechanisms.

Feedback on Request disclosure of documents evidencing the adaptations now (and apply to court for this if necessary).
Incorrect. Receiving disclosure now is not necessary to achieve the understanding which the defendant seeks and is likely to be disproportionately costly. Revisit your materials in relation to statements of case.

Feedback on Apply for strike out (unless the claimant will concede this).
Incorrect. Applying for strike out could be considered at a later stage, but should not be the starting point, because it is a disproportionate mechanism to achieve the understanding which the defendant seeks. Revisit your materials in relation to statements of case.

Feedback on Apply for summary judgment (unless the claimant will concede this).
Incorrect. Applying for summary judgment could be considered at a later stage, but should not be the starting point, because it is a disproportionate mechanism to achieve the understanding which the defendant seeks. Revisit your materials in relation to statements of case.

Question 21

1
In a civil dispute, a claimant makes a Part 36 offer in the sum of £90,000 to the defendant 3 months before trial. The defendant replies the same week with a Part 36 offer to pay £45,000. Neither party accepts the other party’s offer. At trial, the claimant obtains a judgment against the defendant for £70,000.

What is the court most likely to order in relation to costs?

Select one alternative:

The defendant to pay the claimant’s costs of the claim.

The claimant to pay the defendant’s costs of the claim.

The defendant will pay the claimant’s costs until the expiry of the relevant period of the claimant’s offer, and the claimant will pay the defendant’s costs after this point.

The claimant will pay the defendant’s costs until the expiry of the relevant period of the defendant’s offer, and the defendant will pay the claimant’s costs after this point.

The defendant will pay the claimant’s costs until the expiry of the relevant period of the defendant’s offer, and the defendant will pay the claimant’s costs with interest after this point.

Answer 21

The defendant to pay the claimant’s costs of the claim.

Part 36 has no consequences in these circumstances – in the broadest of terms, neither party has done the same as, or better than, it offered (CPR 36.17). Accordingly the general rule in relation to costs applies – the unsuccessful party should pay the costs of the successful party (CPR 44.2). The claimant is the successful party – it received a substantial award at trial.

Question 22

A catering company has issued proceedings alleging professional negligence on the part of the catering company’s accountants. The proceedings have been allocated to the multitrack. In their defence, the accountants deny negligence, and raise arguments in relation to the technicalities of accounting which had not been anticipated by the catering company. The catering company wishes to instruct an expert accountant to provide a view on the strength of the defendant accountants’ arguments (the ‘Intended Instructions’), in order that the catering company can decide how to proceed.

Which of the following is the best advice to give to the client as to its liberty to instruct an expert in this way?

Select one alternative:

The court’s permission is not required for the Intended Instructions if the parties agree on an expert, otherwise it is required.

The court’s permission is required for the Intended Instructions.

The court’s permission is not required for the Intended Instructions if the catering company is prepared to disclose the expert’s advice.

The court’s permission is not required for the Intended Instructions.

The claim is allocated to the multi-track and this constitutes the court’s permission for the Intended Instructions.

Answer 22

The court’s permission is not required for the Intended Instructions.

A common misconception is that the court’s permission is required to instruct an expert witness whereas, in fact, a party may instruct as many experts as it likes. For this reason, the court’s permission is not needed for the Intended Instructions. The court’s permission is needed, however, to call an expert or rely upon a written expert’s report at trial (CPR 35.4(1)).

Question 23

A claimant company has made a without notice application for an interim prohibitory injunction to prevent a former employee from disclosing confidential information in breach of her employment contract. The claimant’s solicitors are aware of a reported case which is likely to have a material and unhelpful effect on the outcome of the claimant’s application.

Should the claimant’s legal representative draw the court’s attention to the unhelpful case?

Select one alternative:

Yes, because the application is for an injunction.

No, because the defendant can draw the court’s attention to the case at a future hearing.

Yes, because the representative is obliged to draw the court’s attention to relevant cases.

Yes, because the application is made without notice.

No, because it is not in the claimant’s best interests to do so.

Answer 23

Yes, because the representative is obliged to draw the court’s attention to relevant cases.

Pursuant to Rule 2.7 of the Code of Conduct, a solicitor must draw the court’s attention to relevant cases which are likely to have a material effect on the outcome of the proceedings. This applies even though this might not be in the client’s best interests. Accordingly, the claimant’s legal representative must draw the court’s attention to the unhelpful case. This is true whether or not an application is without notice and whether or not it relates to an injunction, albeit in practice compliance with this duty may require more careful attention in the case of an application without notice for an injunction than in relation to many other types of application. It cannot simply be left to the defendant to draw the relevant case to the court’s attention.

Question 24

An English company based in London supplies noise insulation services to restaurants. It has a dispute regarding non-payment of an invoice sent to a sole trader who is an individual domiciled in Italy. The invoice relates to services supplied in relation to a restaurant in Manchester. The written contract between the English company and the individual has an exclusive jurisdiction clause stipulating that all disputes must be heard in the courts of Italy.

In which courts must the dispute be heard?

Select one alternative:

English courts, because of the domicile of the English company.

English courts, because the matter concerns land in England.

Italian courts, because of the domicile of the individual.

Either the English or Italian courts.

Italian courts, because of the exclusive jurisdiction clause.

Answer 24

Italian courts, because of the exclusive jurisdiction clause.

This is a clause relating to a civil / commercial matter, in a written contract, granting jurisdiction exclusively to a state contracted to the Hague Convention. The dispute is not of a type excluded from the Hague Convention. Accordingly, the exclusive jurisdiction clause is effective, and proceedings must be brought in Italy. In these circumstances, the fact that the defendant is domiciled in Italy is not really relevant.

Question 25

A claimant in a professional negligence claim has been advised that it might be unsuccessful at trial due to the real possibility that the court determines a pivotal point of law against the claimant. After being properly advised, the claimant instructs that if this does indeed happen, it wishes to appeal. On the day of trial, the judge gives judgment for the defendant due to determining the point of law against the claimant, and states that if a party wishes to appeal the decision then they must apply for permission to do so within 14 days.

When would be the best time for the claimant to apply for permission to appeal?

Select one alternative:

On the day of the trial.

As soon as reasonably practicable.

Within the time period set by the court.

Within 21 days of the court’s decision.

Within a later period of time as ordered by the court after an application to extend the time for filing an appeal notice.

Answer 25

On the day of the trial.

While the other answers are plausible, they are not necessarily the quickest route to appeal. Applying on the day of trial to the trial judge is the best answer because this would save time and means that the claimant does not have to wait longer than necessary. In the event that this is unsuccessful, the claimant is still permitted to apply again for permission to the appellate court within the time period set by the court, so has lost nothing.

Question 26

An employee is suing their employer for negligence following an accident at work. The employer’s solicitors instructed an orthopaedic medical expert to prepare a report on the employee’s injuries and the consequent effect on the employee’s life. The expert’s report commented on areas outside of their area in a way very much favourable to the employee.
Which of the following best explains why the employer can refuse to allow inspection of this report in the event that an order for standard disclosure is made?
Select one alternative:

The report attracts without prejudice privilege.

The report is a form of expert evidence.

The report attracts legal advice privilege.

The report attracts litigation privilege.

There will no obligation to disclose the report, and therefore no obligation to allow inspection of it.

Answer 26

The report attracts litigation privilege.

Litigation Privilege covers confidential communications between a lawyer and client or between one of them and a third party where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of the litigation which was at the time reasonably in prospect. In this scenario, the expert report is a confidential communication between the solicitor and a third party (the expert) produced for the sole purpose of advising the employer about the employee’s injuries for the purpose of litigation already started. Legal advice privilege only covers confidential communications between a lawyer and their client – this report is not such a communication. The expert report is not a genuine attempt to settle, so cannot attract without prejudice privilege. The expert report is not ‘expert evidence’ until such time as it is deployed as such – and the employer does not want to use it as expert evidence. It would be wrong to say that there would be no obligation to disclose the expert report: it is a document, in the control of the employer, which is adverse to the employer’s case and supportive of the employee’s case, and so must be disclosed (but not, for the reasons given above, inspected).

Question 27

A holidaymaker, normally resident in England, is on holiday in Spain when the holidaymaker’s negligent driving causes severe whiplash to an English businessperson. The English businessperson is in Spain for a short work visit. The businessperson wishes to bring a claim in negligence against the holidaymaker.

Assuming proceedings are brought appropriately in the courts of England and Wales, which country’s laws will apply to the dispute?

Select one alternative:

Spain’s laws, because the accident happened in Spain.

England’s laws, because that is where the defendant (the businessperson) resides.

England’s laws, because both parties normally reside in England.

England’s laws, because the proceedings have been brought in England.

Spain’s laws, because the whiplash was suffered in Spain.

Answer 27

England’s laws, because both parties normally reside in England.

This is a tortious matter in relation to which the claimant and defendant habitually reside in the same country. This points to that country’s laws applying to the dispute. The parties have not validly chosen any other law, the tort is not manifestly more closely connected with another country, and none of the ‘special regimes’ in the relevant regulation apply (Rome II Regulation).

Question 28

A civil dispute is approaching trial. Upon reviewing documentation not available to the other party or the court, the claimant’s solicitor realises that the claimant has said something untruthful in their witness statement. The witness statement is included in the trial bundles filed at court. The claimant’s solicitor raises this with the claimant, who refuses to correct it or identify the untruthful part to the defendant or the court.

Which of the following is the most appropriate course of action for the claimant’s solicitor to take?

Select one alternative:

Disclose the situation to the defendant.

Apply to court for guidance as to what to do next.

Disclose the situation to the Court.

Take steps to cease acting for the claimant.

Apply to court to retract the claimant’s witness statement.

Answer 28

Take steps to cease acting for the claimant.

Paragraph 1.4 of the Solicitor’s Code of Conduct provides that a solicitor should not mislead or attempt to mislead clients, the court or others, either by the solicitor’s own acts or omissions or allowing or being complicit in the acts or omissions of others (including the client). By continuing to represent the client, the solicitor would be complicit in the client misleading the court and the defendant. The solicitor must therefore cease to act. It is not permissible to disclose the situation to the Court or to the defendant (unless the claimant permits this). This would be a breach of confidence. There is no option to apply to court to retract the claimant’s witness statement, and in any event, this would not necessarily ‘cure’ the misleading impression already created by the claimant. Furthermore, the claimant has not instructed / permitted its solicitor to do this. There is no need to apply to court for guidance.

Question 29

A claimant is bringing a breach of contract claim against a defendant seeking £400,000. After exchange of witness evidence, the defendant serves on the claimant a Part 36 offer to settle in the sum of £300,000. The claimant rejects this offer and the case proceeds to trial where the claimant is awarded £290,000.
Which of the following statements best describes the likely order in relation to costs?

Select one alternative:

The defendant will pay the claimant’s costs (for the entire claim).

The claimant will pay the defendant’s costs (for the entire claim).

The defendant will pay the claimant’s costs from the expiry of the relevant period until trial, and the claimant will pay the defendant’s costs prior to this.

The claimant will pay the defendant’s costs (for the entire claim), plus interest on those costs from the expiry of the relevant period until trial.

The claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this.

Answer 29

The claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this.

The correct answer is the claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this. This is a Defendant’s offer. The claimant has failed to obtain a result more advantageous than the offer (CPR 36.17(1)(a)). It is likely that a split costs order under CPR 36.17(3) will apply where the claimant will get its costs from the defendant up to the date on which the relevant period expires and the defendant will get its costs thereafter, although the court can make a different order if this split costs order would be unjust. It is not correct to say ‘the claimant will pay the defendant’s costs (for the entire claim), plus interest on those costs from the expiry of the relevant period until trial’ because the likely order is costs FROM the date on which the relevant period expired (and interest on those costs) unless unjust.

Question 30

A publisher notices that a bookshop in Manchester is selling books which infringe copyright owned by the publisher. The publisher is considering bringing proceedings against the manufacturer of the books (which is not the bookshop). The publisher does not know who this is. However, the owner of a bookshop based in Birmingham, which has not been involved with the infringing books, has by email indicated that it does know who the manufacturer is.

Which of the following is the most likely reason for the failure of an application by the publisher for the Birmingham bookshop to disclose the identity of the manufacturer?

Select one alternative:

Proceedings have not yet been issued against the manufacturer.

The application is not proportionate.

The bookshop based in Birmingham is not sufficiently involved in the copyright infringement.

There is no evidence that the identity of the manufacturer is recorded in a document.

The application is not necessary in order for the Birmingham bookshop to bring proceedings

Answer 30

The bookshop based in Birmingham is not sufficiently involved in the copyright infringement.

An application pre-action against a ‘non-party’ in order to identify the identity of the intended defendant is an application for a Norwich Pharmacal order. There are three conditions that must be satisfied for the court to exercise the power to order Norwich Pharmacal relief. They are: - a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer - here there is copyright infringement; - there must be the need for an order to enable action to be brought against the ultimate wrongdoer – this appears to be satisfied, and it is not clear that there is any other way to obtain the information - the person against whom the order is sought must (i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and (ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued. On point (i), the applicant is likely to struggle – there is no evidence of involvement on the part of the Birmingham bookshop, it appears to be just a witness. Accordingly, the application is likely to fail because the bookshop based in Birmingham is not sufficiently involved in the copyright infringement. Putting this issue on one side, it appears the application would be justified as both necessary and proportionate. It is true that there is no evidence that the identity of the manufacturer is recorded in a document, but a Norwich Pharmacal order can require the respondent to provide information, not only disclose documents.

Question 31

A chemical engineering company and a pharmaceutical company are entering into a contract in relation to a new business relationship which they hope will continue for several years. The intended business is highly confidential and has the potential to be extremely lucrative for both parties. The parties are currently on good terms and cannot envisage any disputes arising. The companies are considering including an arbitration clause in their contract.

Which of the following is the most compelling advantage of arbitration over litigation for these parties?

Select one alternative:

Arbitration is quicker.

Arbitration is less expensive.

Arbitration is confidential.

Arbitration will lead to a binding decision.

The parties can choose the arbitrator.

Answer 31

Arbitration is confidential.

Confidentiality is clearly important to the parties. An arbitration is confidential, litigation generally is not. This is a compelling advantage of arbitration over litigation for these parties. It is not true that arbitration is necessarily quicker and less expensive than litigation, and the facts do not suggest that these are the most significant immediate concerns for the parties. It is true that parties can choose an arbitrator (but cannot choose their judge), but the facts do not suggest this would be a significant advantage for the parties. It is true that arbitration will lead to a binding decision, but so will litigation – so this is not an advantage of arbitration compared to litigation.

Question 32

A claimant makes a Part 36 offer to a defendant by letter (the ‘Letter’). The offer is not accepted. In the Letter, the claimant sets out an analysis of the strengths and weaknesses of the claim to justify the offer being made. The claim reaches trial. The defendant wishes to show the Letter to the judge who will determine the claim.

Is the defendant permitted to show the Letter to the judge who will determine the claim?

Select one alternative:

Yes, because the Letter is not confidential as between the parties.

No, because the Letter is conveying a Part 36 offer.

No, because the Letter was written in relation to the litigation.

Yes, because the Letter is conveying a Part 36 offer.

Yes, because the Letter is correspondence between the parties.

Answer 32

No, because the Letter is conveying a Part 36 offer.

A Part 36 offer is treated as ‘without prejudice except as to costs’ and the fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided (CPR 36.16(1) and (2)). Even if this was not specifically provided for in the CPR, a Part 36 offer would almost always be a genuine attempt to settle, and therefore would attract without prejudice privilege, and could not be shown to the trial judge. The fact that the letter was written in relation to the litigation does not mean it cannot be shown to the trial judge – open correspondence between the parties could generally be shown to a trial judge. Given the provisions specifically relating to Part 36 offers and the fact that this would attract privilege as set out above, the fact that the letter is correspondence between the parties and not confidential as between the parties is not relevant.

Question 33

In a negligence action, the High Court Judge hearing the trial gives judgment in favour of the Claimant. The Defendant considers that the judge misunderstood the relevant law and that the judge’s decision was wrong. The judge has refused the Defendant permission to appeal the decision.

What is the best advice for the Defendant if the Defendant still wishes to pursue an appeal?

Select one alternative:

The Defendant should request permission to appeal from a High Court Judge.

The Defendant should request permission to appeal from a Circuit Judge.

It is not possible to pursue an appeal further because permission has been refused by a High Court Judge.

It is not possible to pursue an appeal further because the decision to be appealed was made by a High Court Judge.

The Defendant should request permission to appeal from the Court of Appeal.

Answer 33

The Defendant should request permission to appeal from the Court of Appeal.

An application for permission to appeal may be made— (a) to the lower court at the hearing at which the decision to be appealed was made (in this case the High Court – that request has already been made and refused); or (b) to the appeal court in an appeal notice (in this case the Court of Appeal). (CPR 52.3(2) and 52A PD 3.5). Option (b) should therefore now be pursued. For the above reasons, it is wrong to say that it is not possible to pursue an appeal.

Question 34

Question14
A farmer is bringing a claim in nuisance against a manufacturer. The parties have carried out standard disclosure and witness statements are due to be exchanged tomorrow. The manufacturer realises that one of its witness statements refers to a document which has not previously been disclosed.

Which of the following is the best course of action for the manufacturer to take?

Select one alternative:

Establish if the document is disclosable, and if it is, it should be disclosed to the farmer immediately.

Establish if the document is disclosable, and if it is, give notice of that fact when exchanging witness statements.

Establish whether disclosure of the document is desirable, and if it is not, remove reference to the document from the witness statement.

Establish if the document is disclosable, and if it is, no further action is required.

Establish if the document is privileged, and if it is not, serve a supplemental list of documents.

Answer 34

Establish if the document is disclosable, and if it is, it should be disclosed to the farmer immediately.

The duty of disclosure is an ongoing duty (CPR 31.11). Upon finding a document which might be disclosable and which has not been disclosed, a party needs to consider whether it should be disclosed. If it should be disclosed, this should be done immediately – doing nothing or waiting for exchange of witness statements is inadequate. If it should be disclosed, then removing reference to it from the witness statement does not change the fact that it should be disclosed. Even if the document is privileged, it still needs to be disclosed: privilege provides a ground for refusing inspection, not disclosure.

Question 35

15
A trial is due to start on Monday 28 November and the trial bundles need to be filed with the court. There are no bank holidays in the three weeks preceding Monday 28 November.

What is the latest date by which the trial bundles must be lodged with the court?

Select one alternative:

Thursday 24 November.

Tuesday 22 November.

Monday 21 November.

Wednesday 23 November.

Monday 14 November.

Answer 35

Tuesday 22 November.

The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial (CPR 39.5(2)). There must be a clear day at the beginning and at the end of the period - the trial is an event which means that day does not count when counting – it must be a clear day. (CPR 2.8). To work out the last day (‘not less than 3 days before the start of the trial’), one excludes weekends (CPR 2.8(4)). This means Tuesday 22 November is the last date. Day one is Wednesday 23 November, day two is Thursday 24 November and day three is Friday 25 November. You may find it easier to count backwards from the trial.

Question 36

16
A breach of contract claim for £450,000 has reached the stage where the parties must give standard disclosure.
Does the defendant need to disclose and allow inspection of the letter of claim (the ‘Letter’) it received from the claimant’s solicitors?
Select one alternative:

The defendant must disclose the document but does not need to allow inspection of the Letter because the claimant will have a copy of it.

The defendant must disclose and allow inspection of the Letter.

The defendant must disclose the document but does not need to allow inspection of the Letter because it is privileged.

The defendant does not need to disclose or allow inspection of the Letter because the claimant / claimant’s representatives authored this document.

The defendant does not need to disclose or allow inspection of the Letter because the claimant will have a copy of it.

Answer 36

The defendant must disclose and allow inspection of the Letter.

The Letter of Claim would fall within the scope of standard disclosure as it is adverse to the defendant’s claim (since it sets out the allegations against it) and supports the claimant’s case as it demonstrates compliance with the Practice Direction on Pre- Action conduct. As the document is an open document (in its final, sent form) it would not fall within the scope of any privilege and as such must be made available for inspection. The fact that the claimant authored the document and has a copy is not relevant to the defendant’s obligations in relation to disclosure and inspection (you would hope in practice, however, that the claimant would not ask to inspect a document which it has a copy of).

Question 37

An Italian individual has just been served with proceedings issued in the High Court of England and Wales in relation to a breach of contract claim. The individual does not believe that the courts of England and Wales have jurisdiction to determine the claim, and on that basis wishes to prevent the proceedings from continuing.

Which of the following is the best course of action for the individual to take?

Select one alternative:

Take no step in the proceedings.

File a defence setting out the basis on which jurisdiction is disputed.

Apply to strike out the claim on the basis that it is an abuse of process.

File an acknowledgement of service and then apply to court disputing the court’s jurisdiction.

File an acknowledgment of service and then apply for summary judgment.

Answer 37

File an acknowledgement of service and then apply to court disputing the court’s jurisdiction.

If a defendant wishes to dispute jurisdiction, the defendant must first file an acknowledgement of service (CPR 11(2)) – there is a box on the acknowledgement of service to indicate that the defendant intends to contest jurisdiction. The defendant must then apply within 14 days after filing the acknowledgment of service, disputing the court’s jurisdiction. That application must be supported by evidence. If the defendant does nothing, judgment in default may be entered against the defendant. Filing a defence would be engaging in the substance of the dispute and is likely to be considered to be submitting to the jurisdiction. Applying for summary judgment / applying for strike out are not the correct procedure.

Question 38

A distributor wishes to bring proceedings against a manufacturer based in Chile (South America). The claim is issued on 10 March. On 15 March the distributor applies for permission to serve the proceedings in Chile. On 8 June, permission is granted to serve the proceedings on the manufacturer in Chile.

By which date must the proceedings be served?

Select one alternative:

8 October

15 July

8 December

10 September

15 September

Answer 38

10 September

Where the claim form is to be served out of the jurisdiction, the claim form must be served within 6 months of the date of issue. The claim form was issued on 10 March and therefore must be served by 10 September. The date on which the claimant applied for permission to serve out of the jurisdiction is not relevant. Nor is the date on which such permission was granted.

Question 39

A claimant driver is bringing a personal injury claim against a defendant driver following a road traffic accident. The claimant’s witness statement includes the following statement:

“The Defendant’s car was going very quickly”

Is this statement admissible in the proceedings?

Select one alternative:

This statement is inadmissible because it is a statement of opinion.

This statement is inadmissible because it is not a statement of fact.

This statement is inadmissible because it is hearsay evidence.

This statement is admissible because it is a statement of perceived fact.

This statement is admissible because it is hearsay evidence contained in a witness statement.

Answer 39

This statement is admissible because it is a statement of perceived fact.

The statement is a statement of opinion. Whilst the general rule is that opinion evidence is inadmissible in civil proceedings (other than by experts), there is an exception where someone makes a statement of opinion if made as a way of conveying relevant facts personally perceived by them and put forward as evidence of what was perceived. That applies in this case. The evidence is not hearsay evidence.

Question 40

20
You act for a food wholesaler in a breach of contract dispute with a food retailer, the court has ordered standard disclosure and both parties have carried out the requisite searches, prepared and served disclosure lists and carried out inspection. An email (the ‘Email’) then comes to the wholesaler’s attention which is adverse to its position which falls within the scope of the wholesaler’s disclosure obligation. The wholesaler was unaware of the Email at the time disclosure lists were served through no fault of the wholesaler. The wholesaler indicates to you that in no circumstances will it notify the other party of the Email, or disclose it.

What course of action should you take if the wholesaler maintains this position regardless of your advice?

Select one alternative:

You are not required to take any further action.

You should notify the retailer of the Email.

You should notify the court of the Email.

You should cease to act.

You should apply to court for permission to disclose the Email.

Answer 40

You should cease to act.

In failing to disclose the document, the wholesaler is failing to comply with a disclosure obligation and is also misleading the court and the opponent. Pursuant to Rule 1.4 of the Code of Conduct, you cannot be complicit in the actions of others that mislead the court. You will therefore need to cease to act. You cannot notify the court or the retailer of the email (whether by an application to court or otherwise) as this would be to breach the obligation of confidentiality owed to the wholesaler.