Dispute resolution Flashcards
1
Q
What are the primary methods of dispute resolution in the UK?
A
The main methods are:
Litigation: Formal court proceedings with strict rules of evidence; decisions made by a judge.
Negotiation: Informal discussions aimed at reaching a mutually agreeable settlement; often “without prejudice.”
Arbitration: A neutral arbitrator makes a binding decision; rules of evidence are less strict.
Mediation: A mediator helps parties negotiate a resolution; the process is confidential and not binding unless an agreement is signed.
2
Q
What is Alternative Dispute Resolution (ADR), and why is it encouraged?
A
ADR encompasses methods like negotiation, arbitration, and mediation that resolve disputes without litigation. It is encouraged because it is often faster, less costly, and promotes amicable settlements. Courts also emphasize ADR to meet the overriding objective of resolving disputes proportionately and fairly
3
Q
What are the limitation periods for bringing a claim?
A
Tort claims (non-personal injury): 6 years from when the action accrued.
Personal injury claims: 3 years from the date of injury or knowledge of the injury.
Contract actions: 6 years from the date of breach.
Latent defects in property: 6 years from discovery, with a 15-year longstop date
4
Q
What are pre-action protocols, and why are they important?
A
Pre-action protocols outline steps parties should take before starting legal proceedings, such as exchanging key documents and considering ADR. They aim to promote early resolution and reduce litigation costs. Non-compliance may lead to penalties like cost sanctions or a stay of proceedings
5
Q
How do parties commence legal proceedings, and how is the choice of court determined?
A
A claim is started by issuing a claim form detailing the claim.
Claims typically start in the County Court, unless exceeding £50,000 for personal injury or £100,000 for other claims, in which case they may begin in the High Court
6
Q
What is the process for serving a claim?
A
A claim form must be served within four months of issuance (six months for international service).
Service can be by post, personal delivery, fax (with consent), or email (with express consent).
If the court serves the claim, a Notice of Issue confirms the date
7
Q
What are the possible responses to a claim?
A
A defendant can:
Admit the claim (fully or partially).
File a defence.
Acknowledge service, indicating intent to defend.
Failure to respond within 14 days may lead to default judgment
8
Q
What is the purpose of statements of case, and what must they include?
A
Statements of case outline each party’s legal and factual positions.
Claimant’s particulars: Nature of claim, alleged breaches, and requested remedies.
Defendant’s defence: Admissions, denials with reasoning, and alternative versions of events
9
Q
What are interim applications, and how are they used?
A
Interim applications request court orders before the trial, such as:
Summary judgment: To resolve the case if one party has no realistic prospect of success.
Interim payment: To secure a portion of the claim before the final decision.
Injunctions: To prevent or compel actions temporarily
10
Q
How is disclosure managed in civil litigation?
A
Parties must disclose documents relevant to the case, including those harmful to their position.
A list of disclosed documents is shared, with objections noted if any document is withheld due to privilege.
The court ensures disclosure is reasonable and proportionate
11
Q
What is Litigation?
A
A formal court process where a judge resolves disputes using strict evidence rules.
12
Q
What is Negotiation?
A
nformal discussions between parties to reach a mutual settlement. May occur anytime and is often “without prejudice.”
13
Q
What is Arbitration?
A
A semi-formal process where a neutral arbitrator makes a binding decision. Evidence rules are less strict.
14
Q
What is Mediation?
A
A confidential process where a mediator helps parties reach a non-binding agreement until signed.
15
Q
What is ADR?
A
Alternative Dispute Resolution includes methods like mediation, arbitration, and negotiation to avoid court.
16
Q
Why is ADR encouraged?
A
To save time and costs, reduce conflict, and align with the court’s goal of fair and proportionate case management.
17
Q
What are Limitation Periods?
A
Tort claims: 6 years.
Personal injury: 3 years.
Contract claims: 6 years.
Latent defects: 6 years (or 15-year longstop).
18
Q
What is a Pre-Action Protocol?
A
Steps parties must follow before suing, such as exchanging key documents and considering ADR
19
Q
What happens if Pre-Action Protocols are ignored?
A
Penalties include cost sanctions, reduced interest, or a stay of proceedings.
20
Q
How is a Legal Claim Started?
A
By filing a claim form in the County Court or High Court, depending on the case value and complexity.
21
Q
How is a Claim Served?
A
Via post, personal delivery, fax (with consent), or email (with consent). Must be served within 4 months.
22
Q
How can a Defendant Respond to a Claim?
A
By admitting, filing a defence, or acknowledging intent to defend within 14 days.
23
Q
What is Disclosure?
A
Revealing all relevant documents, including harmful ones. Lists include inspected and withheld documents.
24
Q
What is Summary Judgment?
A
A pre-trial decision if one party has no realistic chance of success.
25
What is an Interim Injunction?
A temporary court order to stop or compel actions until a trial.
26
What is Privilege in Disclosure?
The right to withhold documents like legal advice or settlement discussions from inspection.
27
What is a Without Prejudice Communication?
Discussions or documents intended to settle a dispute, protected from being used in court.
28
What are Pre-Action Considerations?
Parties should assess limitation periods, exchange information, and attempt settlement before filing a claim.
29
What is the Purpose of the Overriding Objective?
To ensure cases are dealt with fairly, proportionately, and efficiently.
30
What is a Part 8 Claim?
A simplified process for cases with no substantial dispute of fact, requiring clear legal questions.
31
What is the Time Limit for Serving a Claim Form?
4 months (or 6 months for international claims). Extensions are rare.
32
What Happens in Default Judgment?
If the defendant fails to respond in time, the claimant can request a judgment without a trial.
33
What is a Stay of Proceedings?
A court order pausing legal proceedings, often to allow ADR or compliance with pre-action protocols.
34
What are Costs Consequences for Ignoring ADR?
Courts may reduce recoverable costs or order the party to pay the opponent’s costs.
35
What is a Directions Questionnaire?
A form asking about trial length, expert evidence, and pre-action conduct, used to guide case management
36
What are the Three Court Tracks?
Small Claims: Up to £10,000 (lower for personal injury).
Fast Track: £10,000–£25,000.
Multi-Track: Over £25,000 or complex cases.
37
What is a Witness Summons?
A court order requiring a witness to attend and give evidence, with conduct money provided.
38
What is a Freezing Injunction?
A High Court order preventing a party from disposing of assets to protect a potential judgment.
39
What is a Search Order?
A High Court order allowing one party to search and seize evidence to prevent its destruction.
40
What is a Disclosure Statement?
A signed declaration by a party, listing disclosed documents and affirming compliance with disclosure duties.
41
What is an Expert’s Role?
To provide impartial, informed opinions on technical matters, overriding any duty to the instructing party.
42
How is Evidence Presented at Trial?
Through witness statements, cross-examination, and, if needed, hearsay evidence with proper notice.
43
What is a Counterclaim?
A claim filed by a defendant against the claimant, arising out of the same facts as the original claim.
44
What is an Interim Payment?
A pre-trial payment ordered by the court if the claimant is likely to succeed and needs funds earlier.
45
What Happens if Directions Are Not Followed?
Sanctions include striking out claims, costs penalties, or barring evidence. Relief requires good reasons.
46
What is a Third-Party Claim?
A claim by a defendant alleging a third party is responsible for the claimant’s loss.
47
What is a Contribution or Indemnity Claim?
A defendant’s claim seeking reimbursement from another party if held liable to the claimant.
48
What is a Statement of Truth?
A signed declaration on legal documents confirming the information is true to the best of the signer’s knowledge.
49
What is Standard Disclosure?
Parties disclose all relevant documents, including those harmful to their case, before exchanging witness statements.
50
What Are Privileged Documents?
Documents protected from inspection, including legal advice, litigation-related communications, and settlement offers.
51
What is an Unless Order?
A court order requiring a party to complete a specific action (e.g., disclosure) by a deadline or face consequences.
52
What is a Case Management Conference?
A hearing where the court sets timelines, addresses disputes over evidence, and encourages ADR.
53
What is the Burden of Proof in Civil Cases?
The claimant must prove their case on the balance of probabilities (more likely than not).
54
What is a Multi-Track Case?
A case involving over £25,000 or complex issues requiring tailored management and possibly multiple hearings.
55
What is Evidence in Chief?
A witness’s primary evidence presented in court, typically aligning with their written statement.
56
What is Cross-Examination?
Questioning of a witness by the opposing party to challenge their evidence or credibility.
57
What is a Pre-Trial Checklist?
A document ensuring all trial preparations, such as disclosure and witness arrangements, are complete.
58
What is a Hearsay Notice?
Notice given by a party intending to rely on out-of-court statements as evidence during the trial.
59
What is a Freezing Injunction Undertaking?
A promise by the applicant to compensate the other party if the injunction was wrongly granted.
60
What is the Duty of an Expert Witness?
To assist the court impartially, overriding any duty to the instructing party or their lawyers.
61
What is a Fast Track Case?
A case valued between £10,000–£25,000, with a streamlined process, typically lasting a day or less in trial.
62
What are Interim Applications?
Requests for temporary court orders before trial, such as for disclosure, payments, or injunctions.
63
What is an Affidavit?
A formal, sworn statement of evidence signed before a solicitor or other authorized person.
64
What is Admissible Evidence?
Evidence allowed in court because it is relevant, reliable, and not excluded by rules (e.g., privileged documents).
65
What is a Default Judgment?
A judgment entered against a defendant who fails to respond or defend a claim.
66
What is Legal Advice Privilege?
Protection for communications between a lawyer and client seeking or providing legal advice.
67
What Happens if Disclosure is Inadequate?
The opposing party can request specific disclosure or apply for an unless order to enforce compliance
68
What is the King’s Bench Division?
A High Court division handling claims like defamation, breach of contract, and negligence.
69
What is a Mediation Agreement?
A binding document signed after mediation, finalizing the resolution of the dispute.
70
What is a Witness Statement?
A written account of a witness’s evidence, signed with a statement of truth, and used at trial.
71
What is a Part 20 Claim?
A claim by a defendant against another party for indemnity, contribution, or related claims to the main action.
72
What is a Stay for ADR?
A pause in court proceedings to allow parties to attempt Alternative Dispute Resolution.
73
What is a Directions Order?
A court’s instructions outlining deadlines for actions like disclosure, witness statements, and trial preparation.
74
What is Contempt of Court?
A serious violation of court orders, such as failing to comply with an injunction, punishable by fines or imprisonment.
75
What is the Role of a Mediator?
To facilitate discussion and help parties reach a voluntary resolution without providing binding decisions.
76
What is Arbitration Enforceability?
An arbitral award is binding and can be enforced in court like a judgment.
77
What is the Civil Procedure Rules (CPR)?
The rules governing civil litigation in England and Wales, ensuring fair, efficient, and proportionate processes
78
What is the Practice Direction on Pre-Action Conduct?
Guidelines parties must follow before filing a claim, like exchanging documents and considering ADR.
79
What is the Duty of Disclosure?
The ongoing obligation to reveal all relevant documents to the opposing party during litigation.
80
What is a Without Prejudice Privilege?
Protection for settlement discussions that prevents their use in court to disadvantage a party.
81
What is a Case Summary?
A document summarizing the main issues and facts, typically required for case management hearings.
82
What is a Witness Summons?
A court order compelling a witness to attend court, accompanied by conduct money for expenses.
83
What is a Costs Schedule?
A detailed breakdown of legal costs submitted to the court for approval or assessment.
84
What is the Burden of Proof?
The responsibility of the claimant to prove their case on the balance of probabilities in civil litigation.
85
What is Cross-Examination?
Questioning of a witness by the opposing party to challenge their testimony or credibility.
86
What is a Fast Track Direction?
A timeline for cases under £25,000, including disclosure, witness statement exchange, and trial deadlines.
87
What is Multi-Track Case Management?
Tailored management for complex cases, including directions for expert evidence and costs budgeting.
88
What is the Role of an Expert Witness?
To provide unbiased opinions on technical matters to assist the court in understanding evidence.
89
What is a Statement of Case?
A formal document (e.g., claim form, defence) outlining a party’s legal and factual arguments in a case.
90
What is a Freezing Order?
A High Court injunction preventing a party from dissipating assets to frustrate a potential judgment
91
What is an Unless Order?
A conditional court order requiring compliance by a deadline or facing severe consequences, like striking out claims.
92
What is Summary Judgment?
A decision by the court to resolve a case without a trial if there is no realistic prospect of success for one party.
93
What is a Disclosure Report?
A document explaining the scope of disclosure, filed before the first case management conference.
94
What is Litigation Privilege?
Protection for documents prepared for litigation, preventing their use by the opposing party.
95
What is an Interim Payment?
A pre-trial payment ordered by the court if the claimant is likely to win and requires funds earlier.
96
What is Expert Evidence?
Opinions from a qualified expert provided in a written report to assist the court in resolving technical issues.
97
What is a Search Order?
A court order allowing one party to search another’s premises for evidence to prevent its destruction.
98
What is the Role of the High Court?
It handles complex or high-value cases, often through its divisions like the King’s Bench or Chancery.
99
What is Hearsay Evidence?
A statement made outside of court, presented to prove the truth of the matter asserted, allowed under certain conditions.
100
What is a Trial Bundle?
A collection of all key documents, organized for use by the judge and parties during a trial.
101
A customer wishes to bring a claim for breach of contract against an online clothing store. The customer sends a letter of claim, and the parties comply fully with the practice direction on Pre-Action Conduct and Protocols. The store instructs solicitors who advise the store that there is no legal basis for the customer's claim. Consequently they make no offer of settlement.
The customer, who is acting in person, decides at the end of the three-month period not to pursue the claim, and they write to the store informing it of this fact.
Can the store recover its wasted costs from the customer?
No, as no proceedings were issued.
102
A car and a lorry collided on the motorway. The car driver received head injuries, fell into a coma, and died three months later. The police successfully prosecute the lorry driver for dangerous driving. The car driver played no part in causing the accident.
The car driver leaves behind a wife and three children, all under the age of 18. His wife obtains a grant of probate for her to bring a claim against the lorry driver as executor of her husband's estate claiming damages for dependency on behalf of her and the children.
How long does the executor have to bring the claim against the lorry driver?
The executor has three years from the date of her husband's death to commence proceedings.
103
A homeowner instructs their solicitor to issue a claim form against a removal company for damage suffered to the homeowner's property during a recent house move. The homeowner estimates that the moving company did £10,000 worth of damages. The homeowner now lives in Manchester and the removal company is based in Brighton.
Where should the claim be issued?
The claim should be issued in the County Court Money Claims Centre.
104
A driver returns to their car to find that it has sustained damage to its front bumper. They find a note on the windscreen apologising for the damage from a 'Mr Paul Smith' of 'Cleverly Enterprises Ltd'. Because it appears the company is vicariously liable for the damage, the driver enters into some initial correspondence with the company. However, the matter drifts, and the driver does nothing to reclaim the cost of repairs.
Then, two weeks before limitation expires, the driver issued a claim form against the company. After issuing and serving the claim form, and after the limitation period expired, the driver realised from correspondence that she has incorrectly identified Cleverly Enterprises Ltd. in the claim form as 'Clovelly Enterprises Ltd.'
Has the driver lost the opportunity to claim from Cleverly the cost of repairs to her vehicle?
No, because the driver may apply to amend the claim form and the court is likely to allow the amendment despite the lapse of time.
105
A solicitor is issuing a claim form in respect of his client who is suing an online auction house for breach of contract. The Particulars of Claim will be served separately.
Which of the following is correct with respect to the statement of truth?
The statement of truth must be completed on the claim form and signed by the client.
106
Question
A marketing company seeks compensation from its IT support provider. The company contends that the supplier failed adequately to respond to a computer system outage. This led to a significant period of downtime, affecting the marketing company's ability to fulfil contractual requirements with clients. They have suffered loss and expense.
The supplier contends that factors outside of their control caused the outage and deny liability for breach of contract. In an effort to resolve the claim without resorting to proceedings, the supplier suggests alternative dispute resolution ('ADR'). The marketing company does not respond to the written request for ADR.
What is the likely impact of the failure to respond to the request to engage in ADR if proceedings become necessary?
The marketing company is likely to be penalised in costs, as it is not acceptable to fail to respond to a request for ADR.
107
In a medical negligence case, the claimant issued proceedings on 21 February. The solicitors for the defendant have reviewed the claimant's medical records and noticed an entry from just over three years ago related to the alleged medical malpractice that is the basis of the claim. The defendant wishes to raise limitation as an issue in the case.
How should the defendant's solicitor bring the limitation issue to the attention of the court?
The defendant should allege in the defence that the claimant has issued proceedings outside the relevant limitation period.
When a claimant issues proceedings after the limitation period has expired, the appropriate course of action is for the defendant to allege in the defence that the claimant has issued after the relevant limitation period has expired. It is then incumbent upon the claimant to make an application to the court to dis-apply limitation. This procedure should be used here because the limitation period for medical malpractice is the same as the limitation period for personal injury - three years.
108
A teacher suffered severe injuries when she fell from a zip wire whilst on a school trip to an outdoor education centre. The teacher is unlikely to return to work as a teacher and is suffering from serious financial difficulty.
The teacher brings a claim for negligence and breach of statutory duty against the school and the education centre, both of which have admitted responsibility for the claim but dispute the amount of damages.
How should the solicitor for the teacher proceed?
The solicitor should make an application for an interim payment.
The solicitor should make an interim payment application. An application for an interim payment is an application for the court to order some payment before the court has given a final determination on the claim. Interim payments are discretionary. They often are granted when the defendant has admitted liability. Whilst the claimant need not show need, it is a factor a court will consider. The amount must be a reasonable proportion of the likely amount of the final judgment. Summary judgment is appropriate when the applicant shows that the other side has no reasonable prospect of success and there is no other compelling reason why the case should proceed.
109
A solicitor is drafting the Particulars of Claim for damages arising from a road traffic accident. The solicitor is aware that the defendant has a conviction for careless driving stemming from this incident. The solicitor wishes to draw the court's attention to the conviction, as they believe it is relevant to the issue of negligence.
How should the solicitor ensure that the conviction comes to the court's attention?
The solicitor should include details of the conviction in the Particulars of Claim.
If the claimant proposes to rely upon the conviction, it is important to refer to it in the Particulars of Claim. Failure to do so will lead to objections from the defendant when attempts are made to rely upon the conviction in due course. (B) is incorrect because including the conviction in the statement of evidence will not rectify the omission from the Particulars of Claim.
110
Question
The driver of a car suffers injury in a road traffic accident when his car was hit by another vehicle. The driver instructs her solicitor to make a claim for the value of the car, which was damaged beyond repair in the accident.
The driver also suffered minor pain from the accident but does not want to claim for this. The pre-accident value of the car was about £2,500. The solicitor issues proceedings in the County Court.
To which track will the court likely allocate the claim?
The small claims track, because the claim for property damage is less than £10,000.
The claim will be allocated to the small claims track. A claim will be allocated to the small claims track when less than £10,000 is in dispute (or if less than £5,000 is sought for personal injuries in a standard road traffic accident). Here, the claim is for £2,500 for property damage and no claim is being made for personal injuries. (B) is incorrect because the driver is not making a claim for personal injury at all, so it is irrelevant that their injuries are minor.
111
A defendant in a professional negligence claim has failed to serve his expert's report by the deadline specified in the directions order. This is the third time so far in the course of the proceedings that the defendant has missed a deadline. The claimant would like to prevent the defendant from using the expert's report at trial.
How should the claimant proceed?
Make an application for an unless order with respect to service of the report.
The claimant should make an application for an unless order with respect to the expert's report. If a party fails to comply with the directions order, the court usually will not impose a sanction unless the non-defaulting party makes an application for an unless order specifying the sanctions that may be imposed and the defaulting party fails to comply with the unless order. In that case, the court may strike out a defence or claim, impose costs, debar the defaulting party from relying on the evidence involved, and so on. But as there has been no unless order issued here, that is the first step the claimant must take in seeking to prevent the defendant from relying on the expert's report.
112
A water company sues a homeowner after the homeowner fails to pay their water bill. The homeowner has been ignoring the company's letters but has now received a sealed copy of the claim form from the court. The homeowner knows that they must pay the amount outstanding but has some financial difficulties and is unable to pay in one sum.
What should the homeowner do?
Ask for time to pay or to pay in instalments, by completing the relevant section in the response form.
The homeowner should return the response form and ask for additional time or payment by instalments in the appropriate section of the response form. They will have to provide details of their assets, income, and outgoings and will indicate what they are able to pay. If the claimant does not accept, the court will determine the appropriate level of instalments. It may convene a hearing for this purpose.
113
A claimant has issued proceedings against a defendant for trespass. The claimant believes the defendant has no viable defence and so would like to apply for summary judgment to avoid prolonged litigation and costs.
What is the earliest time at which the claimant can apply for summary judgment?
As soon as the defendant files an acknowledgment of service.
A claimant who wishes to make an application for summary judgment may do so as soon as the defendant acknowledges the claim. The claimant need not wait for the defendant to file a defence.
114
A greengrocer initiates a breach of contract action against one of its fruit suppliers. The claim is allocated to the appropriate track, and the court orders the parties to file Directions Questionnaires.
Describe the Directions Questionnaire?
A document that helps the court manage the case by requiring the parties to address issues such as whether experts will be required.
A Directions Questionnaire is a document that helps the court manage the case by requiring the parties to address certain issues, such as whether experts will be required. Other issues that must be addressed include whether the parties complied with pre-action protocols, track allocation and details of applications and directions already made as to disclosure and inspection, the names of witnesses and issues they will address, the estimated length of the trial, and the details of anticipated costs.
115
A new bride is unhappy with the photographs produced by her wedding photographer. She complains and asks for her money back. The photographer believes the photographs to be of good quality and believes that the bride is simply trying to avoid paying for them.
The bride issues proceedings, and the photographer intends to make an application for summary judgment because he believes litigation will be a waste of time and money given the quality of his photographs.
What must the photographer prove to obtain an order for summary judgment?
That the claimant has no real prospect of success and there is no other compelling reason why the case should be disposed of at trial.
116
A factory worker was injured when a cutting machine sliced her hand. She made a claim against the manufacturer of the machine and included an application requesting an interim payment with a bundle of supporting evidence. The deemed date of service was 4 January. The court will hear the application on Tuesday, 24 January.
Whilst the defendant has admitted liability for breach of duty, they believe that the claimant was partially responsible for her own injuries in that she failed to wear suitable protective gloves. Had she done so, the extent of her injuries may have been minimal. Therefore, the defendant is not keen on making a payment at this stage of the proceedings.
What is the latest date on which the defendant may file its written evidence?
17 January, seven days before the hearing.
The defendant must ensure that they serve evidence in support of their objection at least seven days before the hearing. If not, the court is unlikely to consider it. As the period is seven days from the hearing, the choices indicating that time is measured from the date of service
117
An electrician was injured when the equipment that was supplied by his employer malfunctioned whilst the electrician was re-wiring an office. The electrician issued proceedings against his employer that were deemed served on 1 June. The proceedings did not include the Particulars of Claim. The electrician's solicitors served them later, with a deemed service date of 12 June.
How long does the employer have to acknowledge service?
14 days from the deemed date of service of the Particulars of Claim.
A defendant must respond to a claim within 14 days of the deemed date of service of the Particulars of Claim. As time is measured from the deemed date of service of the Particulars
118
A cyclist suffers multiple injuries following a collision with a car. The solicitors for the cyclist write to the driver's insurers indicating that they are intending to bring a claim. They subsequently send a letter of claim to the driver, with a copy to his insurers, stating that they will commence formal legal proceedings unless they receive a formal admission of liability within 21 days.
The driver's insurers respond 14 days later. Their response states that they are investigating the claim and will come back to the cyclist's solicitors as soon as possible with confirmation of whether liability can be admitted.
How long do the insurers have to investigate the claim?
Three months.
119
A claimant is suing his mechanic for £3,500 damages. Whilst driving home from the mechanic's garage, the claimant's car lost all of its oil and the motor seized. It appears the mechanic failed to properly tighten the car's oil filter.
If the claimant does not include the Particulars of Claim on the N1 claim form, when must they be served?
Within 14 days of service of the claim form.
120
A claim form marked "Particulars of Claim to follow" is issued on 15 August. The claim form is deemed served on 5 December. The Particulars of Claim was then served on 18 December.
Was the Particulars of Claim served within the prescribed timescale?
No, as a claimant must serve the Particulars of Claim within four months of service of the issuance of proceedings.
121
A homeowner is suing an architect for return of fees paid to the architect, claiming that the architect did not provide plans as originally agreed. The architect's defence is that the homeowner asked the architect to vary the plans as originally agreed to accommodate a large table the homeowner decided to place in a particular room. The homeowner's cousin was present when the architect and homeowner discussed the change and has given a witness statement in favour of the homeowner. The architect would like to cross-examine the cousin at the trial. However, the homeowner's cousin has indicated that he will not attend the trial because he must go to work that day.
May the solicitor do anything to ensure that the homeowner's cousin attends the trial?
Yes, the solicitor may ask the court to issue a witness summons to compel attendance of the homeowner's cousin.
122
A solicitor is considering whether to issue a professional negligence claim in the High Court or the County Court. The claim involves some complex issues that are likely to require very specific expert evidence and has a value of £120,000. He calculates accrued interest at £5,000. There is an allegation of contributory negligence that realistically may reduce the claim value by 25%. There are no benefits for repayment to the Compensation Recovery Unit, and the defendant has intimated a counterclaim with a fixed value of £25,000.
In which court should the claimant issue?
The claimant should issue the case in the High Court, because of the complex issues involved.
123
On 27 September 2020, a boy suffered severe injuries in an accident in a school playground. He was playing on a new set of swings when the supporting rope became loose, causing the boy to fly through the air and suffer a concussion and broken hip. The boy needed a number of operations on his hip and is likely to experience significant mobility issues in the future. The boy was born 3 March 2012.
What is the latest date on which the boy may bring a claim for his injuries?
3 March 2033.
The limitation expires on 3 March 2033 as this is three years after the boy's 18th birthday. If the injured party is a minor, time does not start to run on a claim until the minor's 18th birthday. As the claim here involves personal injury, the relevant limitation period is three years from this point.
124
A small business based in the UK has a contractual dispute with a larger company based in Paris. The small business wants to commence proceedings against the larger French company to recover a debt. The contract signed by both parties states that the applicable laws of England and Wales will govern any dispute between the parties and that any disputes will be exclusively determined by the courts of England and Wales. The business issues the proceedings and now must arrange to serve upon the company at their address in Paris.
How long does the business have to serve the proceedings upon the French company?
6 months
For service outside the jurisdiction, the claimant has an additional two months over and above what would be available if the company had a registered office in the UK. In the UK, a claim must be served within four months of issue of proceedings.
125
A client wishes to commence proceedings against their former solicitors for negligent advice in respect of various trust funds of which they are a beneficiary. Their solicitors estimate the value of the claim at £250,000. The client is based in Manchester and is severely disabled, and her former solicitors are based in London.
In which court should the client's solicitors issue the claim?
The High Court of Justice, Manchester District Registry, Chancery Division.
The claim should be issued in the High Court of Justice, Manchester District Registry, Chancery Division. Generally, claims exceeding £100,000 are issued in the High Court. The High Court has district registries in most large towns and cities, and the claimant should indicate on their claim form the district out of which they wish the claim to issue. As the client is based in Manchester and is severely disabled, Manchester would be the best registry. And the Chancery Division of the High Court is the division that handles equity and trusts.
126
A sole trader brings a claim against a supplier for breach of contract. The supplier indicates that they are happy for service of the claim form to be on their solicitor (who the claimant has been corresponding with pre-issue). The solicitor has not confirmed this directly to the claimant. The claimant sends the claim form to the nominated solicitor two days before expiry of the claim form. The solicitor returns the claim form a week later saying they have no authority to accept service of proceedings.
Has the claimant validly served the claim form?
Yes, because the defendant gave the nomination to accept service.
127
A woman is suing a restaurant owner for injuries she sustained when she slipped on sauce that a waiter had accidentally spilt on the floor of the restaurant. Attempts at alternative dispute resolution failed because the parties could not agree on the extent to which the woman's own negligence contributed to her injuries.
In valuing the woman's claim for purposes of completing the claim form, which of the following will be considered?
The woman's damages estimate only.
When valuing a damages claim (that is, a claim for an unspecified amount) for purposes of the claim form, the claimant should disregard interest, costs, contributory negligence, and counterclaims. Therefore, the only item among the choices that should be considered is the woman's damages estimate.
128
On 2 January 2020, officers of a luxury hotel signed a contract with an IT company for the installation of a bespoke booking system. The system was launched on 11 March 2020 when the work was completed. The hotel's staff first began using the system immediately but soon noticed that it was malfunctioning. The hotel notified the IT company of the problems on 14 April 2020. The hotel was not able to quantify its losses until 17 July 2020.
When will the limitation period for the above claim expire?
The company has six years from the date of breach of the contract in which to make a claim. The date of breach is the date that the defective contractual performance was given (11 March 2020 - when the work was completed). Therefore, the hotel has until 11 March 2026.
129
A supplier and a manufacturer enter into a contract. The manufacturer believes the supplier has breached the contract and notifies the supplier. The supplier discusses the matter with a solicitor who advises the supplier to seek to engage in alternative dispute resolution. However, the supplier is adamant that the matter should proceed to litigation.
Which of the following correctly states the legal position?
The court has no power to force the parties to engage in alternative dispute resolution.
130
A new home buyer issues a claim against the home's developer in the County Court. The claim is allocated to the fast track, and the court orders standard disclosure.
The developer tells their solicitor that it may have blueprints and various emails to and from subcontractors that are relevant to the claim, but the developer is reluctant to search for the documents as they might help the claimant.
What advice should the solicitor give the developer?
The developer must search for all documents relevant to the claim as they will have to sign a disclosure statement certifying that they carried out a reasonable search.
The solicitor should advise the developer that it must search for all documents relevant to the claim as the developer will have to sign a disclosure statement certifying that they carried out a reasonable search. Under standard disclosure, each party is required to make a disclosure statement certifying that they understand the duty to give disclosure and that they carried out that duty to the best of their knowledge. In the statement, they must declare that they believe the search they made was reasonable (proportional) and explain why a particular search may not have been carried out. The document is signed by the party, who is subject to contempt proceedings if they make a false statement.
131
A breach of contract case is fast approaching trial. The parties have been negotiating for many months, though each communication was marked 'without prejudice'. Just as it looks likely that the case will settle, the claimant suddenly pulls out of any further discussions and makes it clear that they propose to take the claim to court.
The defendant makes a final offer to the claimant. In the offer the defendant's solicitor reminds the claimant that in earlier negotiations, the claimant accepted a degree of culpability and that if the defendant brings this admission out at trial, it will greatly undermine the claimant's case.
Can the defendant legitimately refer in court to the letter in which the claimant admitted a degree of culpability?
No, as without prejudice privilege protects the communication.
The claimant can claim without prejudice privilege. Without prejudice privilege applies to communications between opposing parties sent with a view toward negotiation or settlement, especially if they are marked 'without prejudice'. As the document here was clearly prepared as part of without prejudice negotiations, it would be inappropriate for the defendant to try to rely on this at trial.
132
A claimant initiated a simple breach of contract case against a defendant, which was allocated to the fast track. Settlement efforts were unsuccessful, and all necessary pre-trial steps have taken place. The case was fast approaching trial.
Which one of the following best describes the parties' responsibility for the trial bundles?
The claimant's solicitor must prepare a trial bundle and bear the cost of preparing it.
The claimant's solicitor must prepare a trial bundle and bear the cost. A bundle should be prepared for the court and each party, and these should be filed between three and seven days before trial.
133
A solicitor represented a client in a personal injury claim. The claim proceeded to trial after the parties could not settle using alternative dispute resolution measures. The client won her claim, but she was disappointed in the award. She brings a claim against the solicitor for professional negligence, asserting that the solicitor failed to contact witnesses who could have given favourable evidence for the client. The solicitor claims that contacting additional witnesses would have been a waste of time as their testimony would not have been any different to that of witnesses who were called. The solicitor wishes to instruct another solicitor as an expert witness regarding the standard practice for such cases considering the overriding objective.
Is the court likely to allow the solicitor to instruct the other solicitor as an expert?
No, because the judge would likely know what the standard practice is regarding calling witnesses in personal injury cases.
The solicitor would not likely be allowed to instruct the other solicitor as an expert because the judge would likely know what the standard practice is regarding calling witnesses in personal injury cases. An expert may be instructed to give an opinion on matters that are not within the ordinary experience of the judge and that depend on special knowledge, skill, or training. Whilst the standard practice for calling witnesses in a personal injury case does require special knowledge, skill, and training, the judge in the case would no doubt be familiar with the standard practice by virtue of their position as judge
134
A web designer (claimant) contends that after weeks of negotiation, a telephone call took place between himself and the owner of a local business (defendant) in which the defendant instructed the claimant to design a website. The claimant began the work but the defendant refused to pay the claimant anything, so the claimant issued proceedings.
The case is approaching trial and the defendant has not admitted that the above telephone conversation occurred. The claimant's solicitor advises service of a Notice to Admit Facts regarding the call.
Which of the following best states the legal position with respect to such a notice?
The claimant must serve the notice no later than 21 days before trial and if the defendant does not admit that the call happened and the claimant proves this fact at trial, the defendant may be required to pay the claimant's costs of proof even if the defendant wins.
The claimant must serve the notice no later than 21 days before trial. If the defendant does not admit and the claimant proves the fact at trial, the defendant may be responsible for the costs of proving the fact regardless of the outcome of the case.
135
An owner of a warehouse issued proceedings against an architect after a floor in the warehouse collapsed shortly after the building was put into use. In due course, the parties file Directions Questionnaires and agree that expert evidence is required. They both request permission to obtain and rely on their own expert's report. The District Judge considers the Directions Questionnaires and makes an order for the parties to instruct a single joint expert.
Which of the following best describes the process that the parties must follow in relation to the instruction of a joint expert?
The parties should try to agree the identity of the single joint expert, and if they cannot, the court will choose from a list provided by the parties.
The court will expect the parties to agree, but if they cannot, it will choose from a list of experts the parties provide. The parties will then jointly instruct the expert, and the expert will send their report to both parties. Questions can then be asked if appropriate. (A) is incorrect because the claimant cannot unilaterally choose the expert.
136
A woman has a road traffic accident with a lorry. The woman's injuries are significant. She hires a solicitor to represent her. After reviewing the facts, the solicitor is concerned regarding the degree to which the accident might have been the woman's fault. Therefore, before issuing proceedings, the solicitor instructs an accident reconstruction expert to assess the accident. The expert prepared a brief report for the solicitor, and the solicitor issued proceedings after reading the report.
Does the report fall under litigation privilege?
Yes, as there was a real likelihood of litigation at the time the report was created.
The report falls under litigation privilege because there was a real likelihood of litigation when the report was created. Litigation privilege protects communications between a solicitor and a third party (for example, an expert or a barrister) sent for purposes of preparation for trial. The privilege will apply so long as it was sent when there was a real likelihood of litigation (a mere possibility is insufficient). Here, given the woman's significant injuries, a claim was likely when the expert and the solicitor communicated. Thus, the privilege applies.
137
A woman issues a road accident claim for damages arising from a car accident. The case is allocated to the fast track. The claim is about to go to trial.
Which of the following best describes the burden of proof in this case?
The claimant must prove their claim on the balance of probabilities.
138
A solicitor wishes to instruct a friend as an expert witness in a road accident case to render an opinion on the roadworthiness of the cars involved. The friend has no formal training with respect to cars, but she has worked in her father's car repair shop for seven years, and the solicitor is confident in her knowledge.
May the solicitor's friend act as an expert witness?
Yes, because her informal training qualifies her as an automobile expert
139
In a construction case by a building owner against the building's developer, the developer refers to a contract between the developer and a contractor relating to the building's foundations. The building owner believes that there must have been a series of communications and documents passing between this contractor and the developer, but the developer has disclosed no such documents as part of the disclosure process.
The building owner raised this with the developer. The developer's response is that the building was constructed over 10 years ago, and if any of the requested documents existed, they will have been destroyed or remain in a remote storage facility in Scotland. Thus, it would be disproportionate for them to be expected to search for any of these documents. The building owner disagrees and makes an application for specific disclosure.
In addition to disclosure being necessary and proportionate, what else must the building owner demonstrate to obtain an order granting disclosure?
Evidence that shows it is likely that the documents are or have been in the control of the developer.
The building owner must demonstrate that the documents have been within the respondent's (that is, the developer's) control at some point. A party is under a duty to disclose documents on which they will rely plus any documents which affect their case adversely, affect the other party's case adversely, or support the other party's case. This duty extends only to documents that are or were in the disclosing party's control (that is, documents that are or were within the party's possession or as to which the party had or has a right to possess, inspect, or copy). A party who is not content with disclosure can apply for an order for specific disclosure by explaining why they think the document sought likely exists and that it is within the documents that must be disclosed. Since the question already sets out the requirement of proportionality,
140
A claimant has issued proceedings against a defendant for breach of contract. After being served with the Particulars of Claim, the defendant believes there is no case to answer. The defendant therefore immediately acknowledges the claim and makes an application to strike out the claim. Three weeks later, whilst the defendant is waiting for a date for the application to be heard, the claimant applies for and obtains judgment in default of defence. The defendant then raises objection with the court and asks for judgment to be set aside.
Is the court likely to set aside the default judgment?
Yes, because the court has not yet considered the defendant's application to strike.
The court must set aside the judgment because it has not yet considered the defendant's application to strike out. A defendant must respond to a claim within 14 days after deemed service of the Particulars of Claim. The response can be either an admission, the service of a defence, or an acknowledgment of service with an indication that a defence will be filed. The defence must then be filed within 14 days unless the defendant then applies for summary judgment or to strike the claim. In that case, a defence need not be filed until the application is resolved. If a default judgment is granted before the application to strike or for summary judgment is heard, the court must set aside the default judgment.
141
A claimant is suing a defendant for breach of contract. The directions order in the case requires the parties to serve their disclosure list by 30 April. The defendant serves their list on 30 April, but the claimant has failed to do so. It is now 7 May.
What should the defendant do?
The defendant should make an application to the court for an unless order in respect of service of the disclosure list.
At this point, it would be appropriate to make an application for an unless order, which specifies the penalty that will be imposed unless the party complies with the direction. The claimant is in default, but rather than allowing the claimant to serve late and raise this later in the case or at trial, it is sensible to make an application to enforce compliance, knowing that failure to comply with any order made may lead to the claim being dismissed.
142
A commercial dispute arises between a company based in London (claimant) and a corporation whose head office is situated in the Netherlands (defendant). The defendant denies that they are in breach of warranties contained within the contract. The claimant contends that their losses arising from the defendant's breach of warranty are significant, running to millions of pounds. The claimant starts proceedings in the High Court, but the matter has yet to come before the court for directions. The claimant becomes aware that the defendant is actively taking steps to wind up its UK operation in order to avoid paying any judgment.
What steps should the claimant's solicitor take to protect their client's position?
The claimant should make an urgent application for an injunction to freeze the assets of the defendant combined with an application for a search order.
When it becomes apparent that a foreign defendant is actively winding up its UK operations, and the matter has not yet even made it to the directions stage of the proceedings, the claimant's best course of action is to make an application to freeze the defendant's assets coupled with an application for a search order. A freezing injunction is an injunction that prohibits the enjoined party from disposing of their assets. One is advisable here because if the defendant winds down their UK operations, it might be quite difficult for the claimant to collect on any judgment against the defendant if the claimant prevails in the case. A search order allows a party to search for potentially relevant evidence in the other party's possession when there is concern that party might destroy or remove the evidence from the jurisdiction.
143
A motorcyclist was seriously injured in a road traffic accident. He issued a claim and made an application for an interim payment. The insurers for the other driver involved in the accident have admitted negligence, and the claimant obtains judgment on the strength of that admission.
Which of the following statements most accurately describe the grounds that the court must believe are satisfied to grant an interim payment order?
The claimant has obtained judgment for damages 'to be assessed', and, if the action proceeded to trial, the claimant would obtain judgment for a substantial sum.
An application for interim payment may be granted if judgment has been obtained for damages to be assessed and the court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum.
144
A patient has initiated a claim against their doctor for professional negligence. The patient believes that they will need to rely on evidence from experts in two separate disciplines to make their case. However, the court issues a directions order that allows for only one expert.
May the patient apply for a variation in the directions?
Yes, by making an application to vary the directions within 14 days of issuance of the order.
The patient may seek an order to vary the directions order, but an application is required. It may or may not be successful. The court may believe that the directions are suitable for the claim to be resolved fairly, expeditiously and justly, but it would be appropriate for the patient to make an application to vary, as they believe that the direction has compromised their position.
145
A woman brings a breach of contract claim against a builder for £25,000, alleging that the builder failed to properly complete an extension the builder added to the woman's home. The woman claims that after she paid the builder, she discovered that the extension is smaller than agreed and used material inferior to those agreed. The builder maintains that he completed the work as agreed. Nonetheless, the builder sends the woman a Part 36 offer of £8,000. The offer's deemed service date is 1 June, and it gives the woman 21 days to accept.
The woman does not accept the offer and the claim proceeds to trial. Although the court agrees that the extension was smaller than agreed, it finds that the materials were adequate and awards the woman £7,000.
What costs order would you expect the trial judge to make?
The builder pays the woman's costs until 23 June, and the woman pays the builder's costs thereafter.The builder pays the woman's costs until 23 June, and the woman pays the builder's costs thereafter. - not selected, this is the correct answer
The builder likely will be ordered to pay the woman's costs until 23 June, and the woman likely will be ordered to pay the builder's costs thereafter. If a defendant makes a Part 36 offer, the claimant does not accept the offer, and the claimant wins the claim but does not beat the offer at trial, the defendant will usually be ordered to pay the claimant's costs up to the end of the relevant period of the defendant's offer, and the claimant will usually be ordered to pay the costs the defendant incurred thereafter. The relevant period is the deemed delivery date plus the time (not less than 21 days) during which the offeror says the offer may be accepted. Here, the woman the offer was to settle for was £8,000, the woman won, but was awarded only £7,000, and the relevant period ended 21 days after its 1 June deemed delivery date.
146
A claimant has issued proceedings against a defendant for battery arising from an incident that occurred whilst the two were at a football match. The defendant believes there is no case to answer and would like to apply for summary judgment at an appropriate time.
What must the defendant show to obtain an order for summary judgment?
That the claimant has no real prospect of success and there is no other compelling reason why the case should be disposed of at trial.
To obtain summary judgment, a party must show that the other party has no real prospect of success and that there is no other compelling reason why the case should proceed
147
A photographic company (claimant) seeks damages for losses and expense relating to a wasted trip to take photographs at a company (defendant) awards evening. The claimant contends that their employee travelled for three hours to the venue, only to find that the event was not happening. The claim is for the cost of wasted time and materials. In addition, the claimant alleges that they turned down a lucrative alternative engagement for the same evening to concentrate on providing the best possible service to the defendant. The defendant alleges in their defence that they called the claimant a week before the awards evening to advise that the event was cancelled. The claimant denies that this call ever happened.
How should the claimant respond to service of the defence?
The claimant should file and serve a reply to the defence making it clear that they deny the allegation that the defendant made a call cancelling the instruction.
The appropriate course of action when a defendant raises a factual defence is for the claimant to serve a reply to the defence. A reply is optional but is appropriate to comment on points raised in the defence not dealt with in the Particulars of Claim. (A) is incorrect because if the allegation is not specifically denied the court may deem it to be admitted
148
A small printing business has printed a set of menus for a local professional society ahead of its annual dinner. The invoice expressly stipulated payment terms as 28 days, but despite reminders, the society has failed to make payment in respect of the goods supplied. The owners of the printing company feel that they have no option but to issue proceedings to recover the debt.
In addition to the nature of the goods sold and delivered and the date of delivery, which of the following best describes information that must be included in the Particulars of Claim to recover the debt?
The Particulars should include the price and accrued interest, and a statement that the debt is unpaid.
149
A claimant is making an application for a freezing injunction against a defendant who has offices globally.
What must the claimant prove to obtain the injunction?
That they have a good, arguable case and that there is a real risk that the defendant may dispose of its assets within the jurisdiction before a judgment can be enforced.
150
A gardener makes a claim for payment of an outstanding bill for supply of gardening services to a business in his town. The claim is for a specified sum plus accrued interest and the applicable fixed costs. The defendant files a response admitting the whole claim.
What will the court now do?
Issue a judgment order to include accrued interest and fixed costs, which the defendant is required to pay.
151
An employee at a dry cleaner was injured whilst using a press to iron shirts. The employee alleges that the owner of the business removed safety equipment from the press that would have prevented the employee's injuries. The parties could not settle their dispute, and the employee issues a claim in the County Court. The claim is allocated to the fast track, and the court orders standard disclosure.
The employer tells their solicitor that they remember receiving specifications and instructions regarding the press from its manufacturer, but that they are not sure where the instructions might be. Additionally, the employer fears that the instructions might actually support the employee's claim and so the employer is reluctant to search for the documents.
What advice should the solicitor give the employer?
The employer must search for all documents relevant to the claim as they will have to sign a disclosure statement certifying that they carried out a reasonable search.
The solicitor should advise the employer that it must search for all documents relevant to the claim as the employer will have to sign a disclosure statement certifying that they carried out a reasonable search. Under standard disclosure, each party is required to make a disclosure statement certifying that they understand the duty to give disclosure and that they carried out that duty to the best of their knowledge. In the statement, they must declare that they believe the search they made was reasonable (proportional) and explain why a particular search may not have been carried out. The document is signed by the party, who is subject to contempt proceedings if they make a false statement
152
A driver accidentally strikes a pedestrian on a pedestrian crossing. The pedestrian makes a claim against the driver, and evidence suggests that the driver's vehicle was travelling at a high rate of speed.
The driver defends the claim on the basis that the pedestrian ran out onto the crossing and into the path of the driver's approaching vehicle. The driver also is a senior government official who was responding to an emergency call out of national importance.
The defence are refusing to provide any documents which might explain why the vehicle was travelling at a high speed or the nature of the call out, claiming public interest immunity.
Is the driver's position tenable insofar as disclosure is concerned?
Yes, the driver can refuse to disclose documents if it is accepted that production of the documents would harm the public interest sufficiently to justify withholding them.
153
A defendant gives disclosure in a claim arising from a contractual dispute. The claimant notices that the disclosure list fails to include any email communications between the defendant and a supplier who is not part of the claim, but which were referred to in the defendant's Statement of Case.
Which of the following statements most accurately describes the steps the claimant should take to obtain disclosure of the emails?
The claimant should write to the defendant, asking for disclosure of the emails, and if this fails make an application for specific disclosure.
A party who is unhappy with disclosure because they have reason to believe relevant documents exist which were not disclosed may make an application for specific disclosure. However, before making the application, the party should write to the other party, asking for the documents and explaining, among other things, why they believe the party has the documents and why it is reasonable and proportionate for the documents to be disclosed. Here, the claimant has good reason to believe the emails exist, as the defendant referred to them in his Statement of Case
154
A supplier allegedly breached a contract with a car manufacturer. The car manufacturer contends that parts sent to it from the supplier were not up to specifications. While reviewing documents for possible disclosure, the car manufacturer's solicitor discovered a memo written by the car manufacturer's former solicitor discussing the merits of possible litigation.
Which privilege would the memo fall under?
Legal advice privilege.
Legal advice privilege relates to communications with a client. It protects compulsory disclosure of all types of communication between a client and their lawyer in which advice is given (or requested) within a relevant legal context. This privilege protects only the solicitor-client relationship and not documents provided by other professionals, for example, documents provided by accountants. The document must be 'directly related' to the performance by the solicitor of their professional duties as a legal advisor. Here. the memo from the solicitor is directed at the client, and so it is covered by legal advice privilege.
155
What is Legal Advice Privilege?
It protects communications between a client and their solicitor where legal advice is sought or given in a relevant legal context
156
What is Litigation Privilege?
It protects communications with third parties (e.g., experts or barristers) made for the dominant purpose of pending or contemplated litigation.
157
What is Without Prejudice Privilege?
It protects settlement discussions or communications that the parties agree are not to be referred to in court to the detriment of a party.
158
What is Common Interest Privilege?
It applies in situations with multiple defendants or group actions, allowing privileged documents shared among the parties to remain protected from inspection by other parties.
159
What is Public Interest Immunity?
It protects against disclosure of documents if disclosure would harm national interests or the administration of justice.
160
A merchant brings a claim for professional negligence against a firm of solicitors which represented the merchant in a breach of contract claim. The claim alleges that the firm did not contact two important witnesses despite the merchant providing the firm details regarding the witnesses. The court has made an order for standard disclosure.
Which of the following statements most accurately describes the parties' obligations regarding documents that must be disclosed?
The parties need only disclose documents upon which they will rely or documents which adversely affect their case or another party's case or which support another party's case which are or were within their control.
The duty of disclosure is wide ranging. The parties must disclose any documents upon which they will rely and documents which adversely affect their case or another party's case or which support another party's case which are or were within their control.
161
What can a judgment creditor do if a judgment debtor does not pay the judgment?
The judgment creditor may apply for an order requiring the judgment debtor to attend court for oral examination. During this examination, the debtor must provide information about their means and assets.
162
A solicitor wishes to instruct a building contractor specialising in the construction of commercial office buildings to provide an expert's report in relation to a claim arising from the defective construction of a commercial building. The building contractor is not licensed or certified and has no formal training, but he has worked as a contractor for six years, and the solicitor is confident in the contractor's knowledge.
May the solicitor hire the building contractor as an expert witness?
Yes, because the contractor's six years' work experience can qualify him as an expert.
163
Can an expert's report provide an opinion on matters central to a case?
Yes, an expert's report may give an opinion on matters central to the case, provided the expert is reasonably certain about their opinion and can substantiate it with evidence and reasoning.
164
When must an expert's report be disclosed to the opposing party?
An expert's report must be disclosed if the party intends to rely on it in court. Once disclosed, the report loses its privilege and becomes subject to inspection by the opposing party.
165
Are expert reports privileged if they are not relied upon?
Yes, expert reports are privileged and not subject to inspection if the party does not intend to rely on them in court.
166
A claimant brings a claim against a defendant in a road traffic case. A bystander, who was sitting on a park bench near the accident, saw it happen. The case proceeded, the bystander's signed witness statement was served, and the case is now near trial. The solicitor for the claimant receives notice of the trial date, but they are concerned that the bystander, whose statement they have served, may not attend.
What steps should the solicitor take to try to ensure that the bystander attend?
The solicitor should ask the court to issue and serve a witness summons on the witness to force their attendance.
The solicitor should ask the court to issue and serve a witness summons. Arguably, the parties should ask the court to serve witness summonses on all witnesses (and experts) called to give evidence at trial. This way, the solicitor cannot be criticised if the witness fails to attend.
167
What happens if a witness fails to attend court after being served with a witness summons?
The witness is in contempt of court. In theory, they may face a substantial fine or a short period of imprisonment for their failure to attend.
167
A claim is approaching trial. One of the witnesses for the claimant has indicated that they cannot attend court on the day fixed for the trial, as they will be out of the country. The witness has provided a signed statement, which the claimant's solicitor has served upon the defendant. Although the witness's evidence is not so crucial to the claimant's case to justify an adjournment, the solicitor is keen to get the witness's evidence before the court.
What steps can the solicitor take to get the witness's testimony before the court at trial?
The solicitor should serve a notice to rely upon hearsay evidence.
The solicitor should serve a notice to rely upon hearsay evidence. If a witness is unable to attend but a party wishes the court to consider the signed statement of the witness at the trial, the court will treat this as hearsay evidence. A judge will not place as much weight on hearsay evidence. This is because the other side will not have the opportunity to question the witness in cross-examination and thereby test the strength of the evidence.
168
In a professional negligence claim between a company and its former solicitors, the claimant company serves the defendant with a hearsay notice in respect of evidence to be given by one of the company directors because the director is unable to attend the trial. The claimant is not proposing to have the witness in court on the day of the hearing but wants the court to have some regard to the evidence that they may give. The defendant doubts the truthfulness of the hearsay evidence and knows where the hearsay witness lives.
What should the defendant do with regard to the hearsay evidence?
Make an application within 14 days of service of the notice to call the witness to court for the trial, together with a notice to attack credibility.
169
A man slipped on a puddle in front of a freezer in a supermarket. He fell and broke his arm. The supermarket has admitted liability, but the parties have been unable to agree damages. The man instructs solicitors, and they issue proceedings on 3 July. On behalf of the client, the solicitors send a Part 36 offer in the correct form to the defendant by first class post on Monday 5 July. The offer specifies the shortest relevant period for acceptance allowed. On 30 July, the defendant supermarket decides that it wishes to accept the offer. No other relevant communication was made.
May the defendant accept the offer at this time?
Yes, because the claimant has not withdrawn the offer.
The minimum relevant period for a Part 36 offer (that is, the minimum time that it must be kept open) is 21 days. Since the offer was made on 5 July and it will be deemed delivered two days later, the offer expired on 28 July. However, a Part 36 offer can be accepted at any time, even after expiry of the relevant period, so long as the offeror has not withdrawn it. The question indicates that the only facts relevant to the offer are set out in the question, and the question does not indicate that a withdrawal of the offer was made. Therefore, the defendant may accept the offer on 30 July.
170
A claimant initiated a simple breach of contract case against a defendant, which was allocated to the fast track. Settlement efforts were unsuccessful, and all necessary pre-trial steps have taken place.
When must the trial bundles be filed?
No less than 3 days before trial.
171
After attempts at alternative dispute resolution fail, a woman issues a claim for battery arising from a fight at a pub. The case is allocated to the fast track. It then proceeds through disclosure and a pre-trial review hearing is set. The court orders the parties to prepare a pre-trial review case summary specifying the agreed and disputed facts and providing a synopsis of the evidence the parties believe will be required.
What is the maximum length for the pre-trial review case summary?
500 words.
