Dispute Resolution MCQS Flashcards

Question

**A defendant agrees to accept service by email. The claim form is then duly served by email. The email is sent on Friday 19 October. The claimant receives notification that it has been read on Monday 22 October. When is the claim form deemed served?** A) Saturday 20 October. B) Tuesday 23 October. C) Sunday 21 October. D) Friday 19 October. E) Monday 22 October.

Answer 1

B) Tuesday 23 October (Correct. The document served is a claim form (which has different rules to other documents). Deemed date of service will be the second business day after the relevant step to serve was taken, as listed in CPR 7.5(1). For service by email this step is sending the email. Both the first and second days must be business days (ie not weekend or other holiday days) so the first business day is Monday 22 October and the second business day, the date of deemed service, is Tuesday 23 October)

Answer 2

B) Monday 7 March (Well done. It would be deemed served second day after posting / giving to DX provider, if a business day, and otherwise it would be deemed served the next business day. The DX provider took it on 4 March. The second day after this is 6 March, a Sunday, and not a business day. So it would be deemed served the next business day, which is Monday 7 March)

Answer 3

C) This is not an acceptable mode of service – it will not be deemed served at all (Correct. Second class post is not an acceptable method of service, only first class post)

Answer 4

B) Claim form and Reply to defence (Correct. Statements of case are key documents by which the parties set out their position in relation to the factual basis of the claim and the claimant’s entitlement to relief. They therefore include the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence)

Answer 5

A) Apply to the court for an amendment (Correct. If a statement of case does not comply with necessary content or includes a mistake, it requires formal amendment. This is likely to require the input of the court, giving permission and making further directions to allow for the defendant to amend its defence, etc. There may be costs consequences for the claimant)

Answer 6

C) Proceedings for contempt of court (Correct. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing. This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases)

Answer 7

D) AB Partnership (a Firm) (Correct. As the partners are being sued as a partnership (ie in the name of the firm and not as individuals) and there is nothing to suggest this is anything other than a traditional partnership (ie it is not an LLP), this is the correct format for the name of this defendant)

Answer 8

E) Simple debt claim (Correct. Particulars of claim are usually contained in a separate document, but they can be included in the claim form where they are relatively concise which they are likely to be in a simple debt claim)

Answer 9

D) Interest, costs, counterclaims, set off, contributory negligence and state benefits the defendant may be liable to pay under the Social Security (Recovery of Benefits) Act 1997 only. (Correct. These items should be disregarded for the purposes of the statement of value in the claim form (CPR 16.3(6)))

Answer 10

E) A claim for interest on these damages can be included in the particulars of claim. This will be pleaded generally and will be based on s35A Senior Courts Act 1981. (Correct. This is a tort claim (negligence) in the High Court so there is no contractual interest provision that might apply and the Senior Courts Act is appropriate for the statutory claim. This is an unspecified claim, as the damages concerned will need to be estimated by the court, so the interest can be pleaded generally)

Answer 11

E) Written agreement (Correct. There are requirements for the particulars of claim in specific types of claim and situations. Here, the claim is based on a written agreement and so the written agreement should be attached. The claim is not based on an oral agreement or an agreement by conduct and so particulars of words spoken or conduct are not required. It is not the purpose of the particulars of claim to set out evidence (from an expert or a witness); this is provided at a later stage)

Answer 12

A) A summary of the relief sought by the claimant (Correct. The particulars of claim closes with a summary of the remedies sought by the claimant and so gives the court and the defendant a quick means of ascertaining what the claimant actually wants. It includes damages and, if claimed, interest)

Answer 13

D) Your client should issue proceedings straight away and then ask the defendant to agree to an application by your client to the court to stay proceedings so both parties can comply with the Practice Direction on Pre-action Conduct (CORRECT: Given the tight timelines and the application of the Practice Direction on Pre-action Conduct the best course of action for the client is to issue the claim form straight away (so preventing the claim from being time-barred by limitation) but contact the defendant so that they can apply to the court asking for a stay to proceedings allowing compliance with the Practice Direction (paragraph 17). The other options set out do not fully address the duty owed by the claimant to comply with the Practice Direction or deal effectively with the risk of the claim being time-barred due to limitation)

Answer 14

D) The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth (Well done. This is the correct form of a statement of truth where a statement of case (here, the particulars of claim) is being signed on behalf of a company. This was covered in the element 'General rules in relation to statements of case')

Answer 15

D) Your client has a choice as to whether to issue proceedings in the County Court or the High Court (Correct. Given that the amount is over £100,000 (even if this is only as a result of VAT), your client has a choice as to where to issue proceedings (7A PD 2.1 and CPR 16.3(6)). However, facts here may point towards the Count Court being the better choice given the complex is not complex and the value is only just over the £100,000 threshold)

Answer 16

A) The solicitor must act to the standard of a reasonably competent practitioner specialising in commercial property (The solicitor owes the client a duty to exercise reasonable care and skill (in both contract and tort). The duty owed is the same in contract and tort. The duty in contract derives from an implied term to act with reasonable care and skill pursuant to s.13 Supply of Goods and Services Act 1982. The same duty is owned in tort as Hedley Byrne v Heller (and later Caparo v Dickman) established that a person who makes a negligent statement could owe a duty of care to a person who suffered pure economic loss through reliance on that statement if there is a special relationship between the parties. The solicitor / client relationship is an established category of special relationship where it is reasonable to impose a duty. The standard is that of a reasonably competent solicitor. The court will consider that a solicitor is not normally negligent if acting in accordance with general practice (Bolam), but that is not conclusive and in deciding what is reasonable, the court may look at the level of skill it believes members of the professional ought to have had (Bolitho). There is a slightly higher standard for someone of greater experience and skill, for example, specialising in commercial property, in contrast to a solicitor who is a general practitioner, but no higher standard. The individual Chamber’s recommendation does not affect the standard. This question is a reminder that you need to have knowledge of contract and tort. Please remember that you have access to contract and tort materials on Adapt)

Answer 17

D) The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol (CORRECT. Parties are expected to comply with the spirit of the protocols and the court will not be concerned with trivial breaches (paragraph 13 PD on Pre-action Conduct))

Answer 18

C) Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly (Correct. The application to set aside judgment in default should be made promptly and should show some merit to the defence. The other answers are incorrect because ‘fault’ is not necessarily relevant, the judgment has been correctly entered, and there is no basis for applying for strike-out)

Answer 19

B) Whether it would be just and proportionate to grant the extension due to the problem with the quantity surveyor (Correct. When the court is exercising its case management powers, it will want to further the overriding objective to ensure that any extension enables the court to deal with the case justly and at proportionate cost. This will be alongside the reasons why an extension is required by the sub-contractor / not agreed by the building company)

Answer 20

B) Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served (Correct. Default judgment may be obtained in default of the defendant filing an acknowledgment of service and/or a defence (CPRs 12.1 and 12.3). The defendant should have filed an acknowledgement of service within 14 days of service of the claim form where the claim form and particulars of claim were served together or within 14 days after service of the particulars of claim where the claim form stated that the particulars of claim was to follow (CPR 10.3(1)(a)); or a defence within 14 days of service of the particulars of claim (CPR 15.4). The deemed date of service of the claim form and the particulars of claim was Friday 16 October and the defendant should have filed either an acknowledgment of service or a defence within 14 days after the deemed date of service which was Friday 30 October. This date has now passed and it is open for the claimant to apply for default judgment)

Answer 21

C) 2 August (Correct. The general rule is that the period for filing a defence is, a) 14 days after service of the particulars of claim; or b) If the defendant files an acknowledgement of service, 28 days after service of the particulars of claim (CPR 15.4). Time starts from the date of deemed service of the particulars of claim and the latest date to file a defence is 28 days after this date as long as an acknowledgement of service is filed. If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, then there is some ambiguity in the rules as to whether the rules for service of the CF (CPR 6.14) apply to the particulars of claim too, or whether the rules for documents other than the CF (CPR 6.26) apply. This could lead to the claim form and particulars of claim being deemed served on different dates, despite being in the same envelope. A party responding to proceedings would be prudent to act on the assumption that the particulars are served on the earliest possible date. Therefore, here, deemed service of the particulars of claim (served within England and Wales personally before 4pm on a business day) is the same day, Monday 5 July (CPR 6.26). A period of time expressed as a number of days is computed as clear days which means the day on which the period begins, 5 July, is not included. The day on which the period ends is not included if it ends in an event (otherwise, it is included). This means counting time begins on a clear day, 6 July, and ends on the twenty-eighth day of counting, here, 2 August, as the period does not end in an event ie a hearing)

Answer 22

B) ‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’ (Well done. As your client has another version of events, your client can deny the paragraph and set out that other version of events. In relation to the other answers, it would clearly be wrong to admit the paragraph, and putting the claimant to proof is only appropriate if the defendant can neither admit nor deny)

Answer 23

A) Be based on a cause of action in which the defendant can establish duty, breach, causation and loss (Correct. A counterclaim is a claim like any other and these four essential elements of the cause of action are essential)

Answer 24

B) The defendant will pay the claimant £75,000 (Correct. The defendant will owe the claimant the £125,000 the claimant was awarded in their claim, less the £50,000 the defendant was awarded from the claimant in the counterclaim and which will be deducted by way of set off. The balance is £75,000)

Answer 25

B) Will be served by the claimant after the defence only if the claimant wishes to allege facts in answer to the defence which were not originally included in the claim (Correct. The reply is an optional statement of case and will only be served if needed. Please see CPR 15.8)

Answer 26

C) An additional claim for a contribution or indemnity against an existing party (Correct. D1’s claim against D2 is a claim against an existing party for a contribution or indemnity (CPR 20.6))

Answer 27

E) The Third Party. (Correct. Additional parties will be referred to in accordance with the order in which they are joined to the proceedings (20 PD 7.4). E is the first additional party to join the proceedings so is the Third Party)

Answer 28

B) D will not be able to apply for default judgment but E will be deemed to admit the additional claim and will be bound by the judgment given at the trial of the main claim between C and D in so far as it is relevant to the issues in the additional claim. (Correct. The additional claim will have been accompanied by an acknowledgment of service form and response pack and needs to be responded to in the usual way, failing which it will be deemed admitted as described in this option (CPR 20.11(2)))

Answer 29

B) C will be permitted to amend the claim form changing E Limited to D Limited as this was a mistake in name only with no doubt as to the actual identity of the defendant (Correct. This situation falls within CPR 17.4(3). D Limited was always the intended defendant and the mistake causes no reasonable doubt as to the identity of the defendant)

Answer 30

E) The amendment is ‘desirable’. (Correct. This is the main test as set out in CPR 19.2)

Answer 31

D) Be verified by a statement of truth unless the court orders otherwise (Correct. See CPR 22.1(2))

Answer 32

B) After a voluntary request to the other party has been refused or not responded to (It is correct to say that the court is most likely to make an order for further information after a voluntary request to the other party has been refused or not responded to. The court expects the parties make requests on a voluntary basis first and the parties should only make an application to the court for an order under CPR 18.1 if the request cannot be resolved – see 18 PD 1. The other answers are incorrect: After the parties have complied with the overriding objective. Parties are expected to comply with the overriding objective at all times and it will always be a factor that the court takes into account when making an order, but it is not the ‘reason’ for the court making an order here. After the parties have reached agreement about the request. If the parties have reached agreement, they do not need a CPR 18.1 court order – 18 PD 1. After the party seeking the information has made the request to the other party on the telephone. The party seeking information should serve a written request on the other party stating a date for a response (and allowing the other party a reasonable amount of time to respond) – 18 PD 1. After the parties have indicated that no further information is required. If no further information is required by either party, they do not need a CPR 18.1 court order – 18 PD 1)

Answer 33

D) An interim application – CPR 23 (The correct answer is that an application for an order for further information is made as an interim application pursuant to CPR 23. The application should be made as an interim application under CPR 23 (18 PD 5). The other options were incorrect: The use of the court’s general case management powers – CPR 3.1 Relief from sanctions – CPR 3.9 The court’s allocation to track – CPR 26 An amendment to a statement of case – CPR 17 These relate to other types of application)

Answer 34

A) Which is in dispute in the proceedings (The correct answer is that a party can obtain further information from the other party to clarify or give additional information in relation to any matter which is in dispute in the proceedings as explained at the beginning of this element. The incorrect answers are: Which is contained in or referred to in a statement of case. Which is contained in or referred to in a defence. Which is contained in or referred to in a particulars of claim. Which is contained in or referred to in a witness statement. The definition is broader than these options. The request is often in relation to a matter contained or referred to in a statement of case, but the court’s power is not limited to matters contained or referred to in a statement of case (or to any other particular document))

Answer 35

B) The defendant applying for the amendment (Well done. This reflects the rule that a party applying for an amendment will usually be responsible for the costs of and arising from the amendment (PD17 and PD19). So, in this case it is likely that the defendant making the amendment would be responsible for the costs. Note that the rule is not obligatory, and the court can depart from it. Given this rule, it is unlikely that the costs would fall to be determined at the end of the trial as most other costs would (CPR 44.2))

Answer 36

A) The client’s response should be in writing, signed, dated and be verified by a statement of truth (Correct. Whatever form the request has taken, the response must be in writing, dated and signed by either the party or their legal representative and also verified by a statement of truth. It could be by letter or by way of a formal reply. (PD 18))

Answer 37

A) Defendant pays the claimant £24,000 (Correct. The set off applies and extinguishes £8,000 of the claimant’s judgment against the defendant. The defendant therefore pays the claimant the net sum of £24,000)

Answer 38

E) The construction company will not require the court’s permission to add the additional party. (Well done. The claim form has been issued but not served. In this case, the court’s permission is not necessary to add the plumber as an additional party (nor is permission needed from either the electrician or the plumber) (CPR 19.4(1)))

Answer 39

B) Yes, as a counterclaim against a person other than the claimant (CPR 20.5) (Correct. Your client, Sue, is the claimant and Amir is the defendant. Amir is seeking to include a counterclaim against a person ‘other than the claimant’ (i.e. other than Sue, namely, the employer) where Sue and the employer are jointly involved in the situation. (CPR 20.5))

Answer 40

D) As soon as practicable but not less than 3 clear days before the hearing (Correct: if an applicant makes a standard with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as practicable but not less than 3 clear days before the hearing (CPR 23.7))

Answer 41

C) With notice by filing at court an application notice, a witness statement and a draft order and paying a fee (Correct: an interim application is made by filing at court an application notice, a witness statement and a draft order and paying a fee)

Answer 42

C) With notice by filing at court an application notice, a witness statement and a draft order and paying a fee (Correct: an interim application is made by filing at court an application notice, a witness statement and a draft order and paying a fee)

Answer 43

A) The evidence will be served on the respondent after the hearing (Correct. The applicant must serve the application notice, evidence in support and order on the respondent as soon as possible after the hearing (CPR 23.9))

Answer 44

B) Directions order for the defendant to file and serve its defence (A directions order for the defendant to file and serve its defence is correct. The summary judgment application was made before the defendant filed its defence and therefore the time for the defendant to file its defence is extended until after the summary judgment hearing (CPR 24.4(2)). The court has made a decision on summary judgment for dismissal of the application and so the claim will continue. The court may give directions for the defendant to file and serve the defence as this has not already taken place. An order to set aside the summary judgment hearing is incorrect as there is nothing on the facts to suggest this is appropriate e.g. both parties attended the summary judgment hearing. A conditional order is incorrect as this type of order is an alternative outcome to the outcome already arrived at (dismissal of the application) – not an additional order. Allocation to a track is incorrect. Whilst the court will delay allocating the matter to a track until after the summary judgment hearing, it will want to see the defendant’s case (in the defence) first. Order the parties to file a statement of costs is incorrect. This would have happened 24 hours before the hearing (CPR 44 PD 9.5) rather than after the summary judgment hearing to enable the court to make an order for costs at the hearing)

Answer 45

E) After the defendant has filed an acknowledgment of service or a defence (The correct answer is the claimant can apply for summary judgment ‘after the defendant has filed an acknowledgment of service or a defence' (CPR 24.4). To apply before this, the court's permission would be needed. An incorrect answer is ‘after the defendant has filed an acknowledgment of service’ as this is not the best answer; the defendant could choose to only file a defence which would then be the trigger for the first opportunity a claimant has to apply for summary judgment. An incorrect answer is ‘after the claimant has filed particulars of claim’ as the trigger is a step by the defendant, not the defendant. An incorrect answer is ‘any time after proceedings have commenced’; this is the rule for when the defendant can first apply for summary judgment, not the claimant. An incorrect answer is ‘at the same time as filing the directions questionnaire’; this is often an ideal time for either party to apply for summary judgment, but it is not the first opportunity)

Answer 46

D) Judgment on the claim (The correct answer is judgment on the claim. The claimant’s claim is in relation to 20,000 laptops (the entire order) and so, if successful on summary judgment, the claimant will get judgment on the claim and the entire claim is over. Dismissal of the claim is incorrect as this would be appropriate where the defendant successfully applies for summary judgment; it is the claimant who has applied here. Dismissal of the application is incorrect as this is appropriate where either the claimant or defendant’s application for summary judgment has failed, the summary judgment application is dismissed and the claim continues to trial. Conditional order is incorrect as there is nothing on the facts to suggest that the judge is not wholly convinced of the merits of one party’s case necessitating conditions ordered by the court. Judgment on part of the claim is incorrect because there are problems with the entire order of 20,000 laptops. There is nothing on the facts yet to suggest that part of the order is not faulty)

Answer 47

B) A reasonable proportion of the likely amount of the final judgment (Correct. See CPR 25.7)

Answer 48

C) The defendant has no real prospect of successful defending the claim and there is no other compelling reason why the claim should be disposed of at trial (Correct. This IS NOT one of the conditions on which an application for an interim payment can be based. It is part of the rules relating to summary judgment. All the other answers are conditions on which an application for an interim payment can be based)

Answer 49

A) Yes, because the period for filing an acknowledgment of service has expired (Correct. The claimant can apply to the court for an interim payment from the defendant because the period for filing an acknowledgment of service has expired an application for an interim payment can be made after this stage of the proceedings has been reached (CPR 25.6). The incorrect answers are: Yes, the period for filing a defence has expired; this is not the rule (CPR 25.6). No, because the claimant cannot claim an interim payment during proceedings; the intention of interim payments is to allow a claimant to seek financial assistance on account of damages in certain situations during proceedings (CPR 25.6). No, because the claimant cannot claim an interim payment pre-action; whilst the claimant can agree an interim payment with the defendant pre-action, it cannot make a court application for an interim payment at that stage. No, because a final judgment has not been made against the defendant; whilst this is one of the conditions for applying for an interim payment, it is not the only condition and if another of the prescribed conditions is met, this would not preclude the claimant from applying (provided the claimant also meets the relevant timing requirements)(CPR 25.6)

Answer 50

D) Apply to the court for an interim payment as the claimant has obtained judgment against the defendant. (Correct – the best course of action for the claimant to take if the defendant does not agree to voluntarily make an interim payment is to apply to the court. The claimant must satisfy one of the prescribed conditions (CPR 25.7) and, on the facts, has done this as the claimant has obtained judgment against the defendant. The other options were not the best course of action: • The claimant cannot apply to the court for an interim payment as, on the facts, the defendant has not admitted liability. • The claimant cannot apply to the court for an interim payment as you are not given any facts to suggest that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant. • It is incorrect to say that a claimant is entitled to an interim payment in a personal injury claim. One of the prescribed conditions (CPR 25.7) must be satisfied in any type of claim. • It is not the best course of action to say ‘do not apply to the court for an interim payment and wait until damages are assessed’ because if one of the prescribed conditions (CPR 25.7) applies, the claimant has a choice to apply for an interim payment)

Answer 51

D) Just (Correct. See CPR 25.13. It would be wrong to say that it must be 'necessary'. Whether it is 'reasonable' and 'proportionate' will be relevant considerations, and part of considering what is 'just', but 'just' is the key concept)

Answer 52

C) Security for costs (Correct – security for costs – because, if successful, a security for costs order would require the claimant to pay a sum of money into court (or by some other manner) to protect the defendant should it successfully defend the claimant’s case and be awarded costs. The defendant wants this protection as it has reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so. The other options were incorrect: Interim payment is incorrect because that is an application made by a claimant (for an interim payment on account of damages which the defendant may be held liable to pay). Interim prohibitory injunction is incorrect because the defendant does not need an order from the court to require the claimant to refrain from doing an act which is causing irreparable or immeasurable damage to the defendant . Interim mandatory injunction is incorrect because the defendant does not need an order from the court to require the claimant to do an act to avoid causing irreparable or immeasurable damage to the defendant. Extension of time to submit its defence (CPR 3.1) is incorrect because the defendant has already filed its defence and so does not need extra time to do so)

Answer 53

D) The defendant could rely on the condition that the claimant is resident out of the jurisdiction (Correct – the defendant could rely on the condition that the claimant is resident out of the jurisdiction as it is in North Carolina, USA which is not a State bound by the 2005 Hague Convention (CPR 25.13(2)(a)). The other options were incorrect: The defendant could not rely on the condition that the claimant is a company and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so because although the claimant is a company, there is no evidence on the available facts that it is impecunious. The defendant could not rely on the condition that the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it because there is nothing on the facts to suggest that the claimant has taken any steps in relation to its assets. It cannot be said that the defendant cannot rely on any of the conditions because one does apply. The defendant could not rely on the condition that the defendant is an impecunious company because this is not a condition: all conditions are based on the claimant’s status/actions, not the defendant’s)

Answer 54

C) The injunction will be discharged at the with notice hearing, without any undertaking being required from the defendant not to do the act (Correct: if the defendant’s statement is correct, then the injunction will most likely be discharged at the with notice hearing. The principle that an injunction will not be obtained when it would serve no practical purpose ('equity does not act in vain') would most likely mean that the injunction would be discharged at the with notice hearing and the court would also consider whether or not to award damages to the defendant pursuant to the claimant’s undertaking in damages. If the defendant’s statement is correct, the other options are less likely. The court is less likely to discharge the injunction at the eventual trial as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience; the trial may be some time away. The court is less likely to maintain the injunction on the basis that the defendant should still not be exercising the voting rights attached to the disputed shares as there is evidence to suggest the injunction is not required now (equity does not act in vain) and the court will choose the course that carries the lower risk of injustice when exercising the balance of convenience. This court is less likely to maintain the injunction on the basis that injunctions granted without notice are always expressed to last until trial as this reasoning is incorrect; in fact, injunctions made without notice will almost always last until the with notice hearing (rather than trial), at which point the court will decide whether they should continue. The court is less likely to discharge the injunction and accept an undertaking by the defendant not to do the act; on the facts the defendant has not offered an undertaking (and still intends to vote) and the court cannot force a party to offer an undertaking)

Answer 55

A) The court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages (It is correct that the court will next consider whether, if the injunction is granted, the respondent would be adequately compensated under the applicant’s undertaking as to damages. This is usually part of 'step 2' and if damages from the applicant’s undertaking would be an adequate remedy to the respondent, and if the applicant is financially able to satisfy any such undertaking, there are good reasons to grant an interim prohibitory injunction. Although the court may consider the other options at the injunction hearing, it is unlikely that they will be considered ‘next’ pursuant to American Cyanamid: The court will consider whether there is a serious question to be tried – the court would have already decided this step (step 1) before considering if damages are an adequate remedy because if this step cannot be met, the injunction will generally be refused. The court will consider where the balance of convenience lies – the court considers this step (step 3) if it cannot resolve an injunction application by finding the answer from step 2 (and, even though steps 2 and 3 are sometimes blurred, it would still be necessary for the court to consider whether the respondent would be adequately compensated before it can make any decision on the balance of convenience). The court will not separately consider whether the defence has a real prospect of success or the merits of the case at this stage: the court will consider whether there is a serious question to be tried as 'step 1', but after that, the key considerations are the adequacy of damages as set out above)

Answer 56

C) The grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages (Correct – the grant of an interim injunction is often conditional on the applicant providing a cross-undertaking in damages. The other options are incorrect: The applicant makes the cross-undertaking in damages to the respondent – no, it makes the cross-undertaking to the court. The court can order an applicant to make a cross-undertaking in damages - no, the court cannot order any party to make an undertaking so here it is subject to the willingness of the applicant. The applicant’s cross-undertaking in damages can only be for the protection of the respondent – no, the cross-undertaking can be for the benefit of others that have suffered damage by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction. It depends on what the court requires. The applicant’s cross-undertaking in damages is considered alongside whether there is a serious question to be tried – no, the applicant’s cross-undertaking is usually considered as part of step 2 and sometimes 3 of the American Cyanamid. Serious question to be tried is step 1)

Answer 57

E) Monday, 18 October. (Correct: if an applicant makes a with notice interim application, they should serve the respondent a copy of the application notice and supporting documentation as soon as possible but not less than 3 clear days before the hearing (CPR 23.7). The other options were not correct: • As soon as possible before the hearing – this is only part of the rule on the service time limit in this situation (CPR 23.7). • Tuesday, 19 October. This is not 3 ‘clear’ days before the hearing. • Friday, 15 October. This is not the correct time limit for standard with notice interim applications (CPR 23.7). • Thursday, 21 October (you could be confusing the application notice and evidence with the statement of costs, which can be served 24 hours before the hearing).)

Answer 58

C) Yes, because if the claim went to trial the claimant would obtain judgment for a substantial amount of money. (Correct. CPR 25.7(1) provides that a condition giving the court jurisdiction to award an interim payment is that the court "is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant", and this is clearly satisfied if 'it is clear that the claimant will be awarded at least £50,000' at trial. An admission of liability or having already obtained judgment are alternative conditions, but they are not necessary ones, so the absence of these does not prevent an application for an interim payment. It does not matter that the very good prospects only relate to 25% of the sum claimed, as long as this is still a substantial amount (but note that the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment – CPR 25.7(4)). The fact that the claimant does not have any money to make the necessary adaptations is not the main factor giving the application good prospects of success)

Answer 59

C) Thursday 7 October (Correct – the applicant must give at least 14 days’ notice of the date fixed for the hearing (CPR 24.4(3)))

Answer 60

A) The defendant is likely to be unsuccessful in its application because of its delay in making the application (Correct. Although the defendant will likely be able to establish that one of the prescribed conditions for security for costs exists (CPR 25.13(2)(a)) and that the claimant has the ability (eg funds) to pay into court or to give a guarantee, the court is likely to refuse the application due to the application of the further discretionary factors . The defendant has left it until just two weeks before the trial to make the application when the facts justifying the order have been known from the outset ie that the claimant is out of the jurisdiction and in a location where enforceability of the costs order will be difficult, and that it has the funds to pay security. An application for security for costs should be made promptly and as soon as facts justifying the order are known and the court is likely to refuse to exercise its discretion to make the order on the basis that there has been a significant delay in making the application)

Answer 61

B) Damages will be an adequate remedy for the supermarket if the claim succeeds (The approach the court takes to determining whether to grant an interim injunction stems from the case of American Cyanamid Co v Ethicon Ltd [1975] AC 396 and in overview is: Step 1 - Is there a serious question to be tried? If not, an interim injunction is unlikely to be granted. But in this case, the claim has 60% prospects of success, so there is clearly a serious question to be tried, and it would be wrong to say that this claim does not have sufficient prospects of success. Step 2 - Would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? An injunction is unlikely to be granted unless damages would be inadequate for the applicant. In this case, there is nothing to suggest damages would be inadequate, and this is why an interim injunction is unlikely to be obtained. Examples of situations where damages would be inadequate are where the harm is irreparable or impossible to calculate – not the case here. If damages were to be inadequate for the applicant, you would consider the situation from the respondent's point of view – is it possible to compensate the respondent if it turns out that an injunction should not have been granted (and could the applicant honour an undertaking to that effect)? This should be possible here from the facts we are given – the applicant appears to have sufficient money to honour an undertaking to pay the respondent damages and so it would be wrong to say that the supermarket will be unable to show the court that it will be able to honour the undertakings that are likely to be required of it. Step 3 - Where does the balance of convenience lie? Given the conclusions reached in relation to Step 2, this step is not very relevant. The other answers are wrong because interim prohibitory injunctions are ideal where the behaviour complained of has not yet taken place and because the respondent having sufficient assets to pay the costs of opposing the application does not that mean that it has good grounds to oppose it)

Answer 62

C) When giving directions on allocation, at a case management conference, or on a party's application.

Answer 63

B) At least 14 days before the CMC Correct. (CPR 31.5(3)).

Answer 64

E) What type of disclosure order, if any, to make. Correct. (CPR 31.5).

Answer 65

D) Max is not obliged to file or serve a disclosure report Correct. There is no obligation to file and serve a disclosure report in a personal injury claim.

Answer 66

C) Standard disclosure Correct – see the standard fast track directions (PD28).

Answer 67

E) Is it a document, is it or was it in the party's control, does it fall within the test for standard disclosure (CPR 31.6)?

Answer 68

C) A phone number memorised by one of the parties Correct. See the definition of document (CPR 31.4). The other answers are all documents - information stored on a computer about when a document was created, and who by, is also included – this is called 'meta data'.

Answer 69

E) The resources of the party required to carry out the search. Correct. This is not stated in the rules as a relevant factor, but the court can still take it into account if it thinks it is appropriate to do so eg under the overriding objective. The list of factors in the rules (CPR 31.7) is not a list of all possible relevant factors.

Answer 70

C) A document in the possession of a witness who is supporting Party X Correct. It may be that this will be provided to Party X if Party X asks for it, and at that point it would become in Party X's control. However, until that happens, it is not within the meaning of ‘control’ within the disclosure rules (CPR 31.8). The other documents are or were all in Party X's control. Party X's director would hold documents like the one described as agent for Party X. Party X would have a right to inspect / take possession of a document obtained by its own solicitor for use as evidence.

Answer 71

A) It would be unreasonable to have to search for the document Correct. This is relevant to whether the document should be disclosed in the first place, but is not listed as an exception to the right to inspect (CPR 31.3).

Answer 72

C) Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive Correct. You have correctly understood that redaction of commercially sensitive parts of a document is only permitted if those parts are irrelevant or privileged.

Answer 73

C) If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.

Answer 74

C) The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged. Correct. The record of the conversation between solicitor and client will be subject to litigation privilege and/or legal advice privilege. The rest of the sheet of paper is not privileged. The dominant purpose test is not really relevant here: we are not looking at a single communication created for several purposes, which is when the 'dominant purpose' test would be useful. Here, we have distinct communications, each with its own clear purpose, and they can effectively be dealt with separately. In practical terms, this means letting the other side see the sheet of paper, but with the record of the conversation between solicitor and client 'redacted' ie hidden. Redaction is explained in the element 'Inspection'.

Answer 75

B) The doctor's note must be disclosed and inspection permitted Correct. The document is in the client's control and is potentially adverse to the client, and therefore must be disclosed. No privilege applies - litigation was not reasonably in prospect at the time the note was written and neither does it meet the test for legal advice privilege (or any other privilege).

Answer 76

B) False Correct. Pursuant to the case of Parry v Newsgroup Newspapers, a solicitor’s attendance note of a conversation between parties (ie between the solicitors for each party normally), or what happens at court, is not privileged since, notwithstanding that the note is a communication, there is no confidentiality in notes of matters at which both sides are present. Therefore it is likely that you will have to provide a copy of your notes as part of the disclosure and inspection stage of proceedings.

Answer 77

A) It depends on the content of the letter Correct. If the letter is a genuine attempt at settlement, then it will be privileged, and can only be shown to the court when it comes to costs. If it is not a genuine attempt at settlement, then it is unlikely to be privileged at all. The fact that the document is labelled a particular way is not conclusive.

Answer 78

B) Search for documents and/or disclose specified documents. Correct. (CPR 31.12(2))

Answer 79

A) Disclosure of the documents is proportionate to the sums at stake in the proceedings Correct. This is not required before the court is able to make an order for pre-action disclosure. Although it is not a requirement, it would be a relevant consideration, although note also that the respondent can be compensated for costs of compliance by a suitable costs order (as explained in this element) and that proportionality is about more than just the sums in dispute (consider also the complexity of the dispute etc). All the other answers are required by the rules (CPR 31.16) before the court may make an order for pre-action disclosure. Note that even if all these factors are present, the court still has a discretion as to whether to order disclosure – it is not obliged to do so.

Answer 80

B) At any time after proceedings have been issued Correct! Well done. An order for specific disclosure (CPR 31.12) can be made at any time after proceedings have been issued. Before proceedings, pre-action disclosure (CPR 31.16) would instead be considered.

Answer 81

C) is more than a mere 'witness' or bystander

Answer 82

C) That the applicant pays the respondent's costs of the application and of giving the disclosure / information.

Answer 83

A) disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs Correct – well done! Looking at the other answers: whether the documents can be obtained from a party (rather than non-party) is a relevant consideration, but does not form part of any of the conditions that must be satisfied.

Answer 84

E) The court has discretion as to costs with the general rule being that the unsuccessful party pays the costs of the successful party. This is correct. The court has discretion as to whether costs are payable, the amount of costs and when they are to be paid and the general rule on costs (CPR 44.2(2)) is correctly described in this answer. When making a costs order, the court will consider the conduct of both parties and not just the receiving party.

Answer 85

D) If the claimant goes on to win at trial then the court is likely to exercise its discretion to deprive the claimant of some or all of its costs on the grounds that it has refused to agree to ADR This is correct. When exercising its discretion on costs the court will have regard to a number of factors contained within the rules in relation to what order to make (CPR 44.2(4)) and in relation to the amount of costs to be awarded (CPR 44.4(3)). One factor common to both of these decisions is that the court will have regard to the parties’ conduct. An example of party conduct that might have an impact on costs is that of an unreasonable refusal by one party to engage in ADR (and this refusal does appear to be an unreasonable refusal).

Answer 86

A) The claimant to pay the defendant's costs on the standard basis. This is correct: the claim has been successful, and it is normal for the unsuccessful party to pay the costs of the successful party. This would be the 'usual rule' given that the application has been unsuccessful (CPR 44.2 and 44 PD 4.2). There is nothing on the limited facts to suggest any of the other costs orders, nor indemnity costs.

Answer 87

A) …if the court awards costs for that item, the sum awarded will be as set out in the CPR, unless the court orders otherwise Correct. The fixed costs regime applies unless the court orders otherwise. The fixed costs regime is about deciding how much costs should be paid if they are going to be paid, not whether costs should be paid.

Answer 88

D) 10am on Tuesday 4 November Correct. The statement of costs must be filed and served party not less than 24 hours before the time fixed for the hearing.

Answer 89

C) At the end of fast-track trials and at the end of interim hearings lasting not more than one day.

Answer 90

D) The party who eventually gets its costs at trial (usually the successful party) will recover its costs of this interim hearing from the other party This is correct. The effect of an interim order of ‘costs in the case’ is that the party that gets its costs following the final hearing of the dispute will recover its costs of that interim hearing. Putting off costs until a later occasion (not necessarily final hearing) is known as ‘costs reserved’. Recovery of the costs following the hearing regardless of who wins at trial is known as ‘costs in any event’. A situation where a claimant is awarded costs at the end of trial but cannot include its costs of the interim hearing would be an order for the ‘defendant’s costs in the case’. A situation where a defendant is awarded costs at trial but the claimant does not have to pay the defendant’s costs of the interim hearing would be an order for the ‘claimant’s costs in the case’.

Answer 91

A) The claimant to pay the defendant’s costs in any event This is correct. The judge has found in the defendant’s favour and is very critical of the claimant’s behaviour. The implication is that the judge has sympathy with the defendant and so is likely to award the costs it has incurred in bringing the application. The other options are not appropriate given the facts of the scenario. Costs thrown away relate to where a judgment or order is set aside, costs in the case would defer costs to final hearing and is less appropriate where the judge clearly favours one party’s position over the other and similarly no order as to costs ignores the fact that the judge is highly critical of the claimant’s conduct and sympathetic to the defendant’s position.

Answer 92

A) The judge will summarily assess the amount of the claimant’s costs immediately at the end of the hearing taking into consideration each party’s statement of costs and their respective brief submissions on what the costs order should be. This is correct. Following a ‘costs in any event’ order at a hearing which has lasted less than one day the court will go on to summarily assess the claimant’s costs before deciding on an amount. The defendant must then pay these costs within 14 days of the costs order being made (CPR 44.7). It is the judge that will summarily assess the costs and not an authorised court officer. When summarily assessing costs the court will be primarily concerned with each party’s statement of costs and their respective submissions. The influence of the budget at this interim hearing will be less important than when the judge is deciding costs of the whole proceedings following the final hearing of the dispute.

Answer 93

C) Require a party to change its legal representative due to high legal costs Require a party to change its legal representative due to high legal costs is the correct answer as this is not an example of the court’s power to manage cases (CPR 3.1). The court will not interfere with the legal representative a party chooses. If the court considers that the legal representative is charging excessive legal costs, the court will address this when making orders as to the recovery of costs. The other possibilities are all examples of the court’s power to manage cases: Extend time to comply with the court’s order to file a witness statement by 1st June. Require a party to attend court. Require a party to file a costs budget. Require a party to take a step in the proceedings to further the overriding objective.

Answer 94

B) The defendant has failed to comply with a rule, practice direction or court order Correct answer: the court can strike out a defendant’s statement of case if the defendant has failed to comply with a rule, practice direction or court order. Failure to comply with a rule, practice direction or court order is one of the grounds for strike out (CPR 3.4(c)). The others are (a) that the statement of case discloses no reasonable grounds from bringing or defending the claim and (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings. The defendant has not filed a defence is incorrect. This is a ground for default judgment (rather than strike out) (CPR 12.3). It is easy to confuse strike out, summary judgment and default judgment. The defendant has no real prospect of successfully defending the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial is incorrect. These are the grounds for summary judgment (rather than strike out) (CPR 24.2). It is easy to confuse strike out, summary judgment and default judgment. The defendant has not responded to one out of five alleged breaches set out in the claimant’s particulars of claim is not the best answer. It is unlikely to amount to one of the grounds for strike out, for example, (a) where the statement of case discloses no reasonable ground for bringing or defending a claim. To fall within this ground it is more likely that a defendant would have only filed a bare denial with no other information. The defendant has not filed a counterclaim is incorrect; the defendant is not obliged to file a counterclaim in addition to a defence and, indeed, may not have a counterclaim against the claimant.

Answer 95

A) 28 days (provided this does not put a hearing date at risk).

Answer 96

D) The breach is not serious or significant The best answer is that the breach is not serious or significant. The case of Denton requires the court to look at three stages as part of its application of the provisions in relation to relief from sanctions (CPR 3.9). The first stage is to identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order. If the breach is neither serious nor significant, then relief should be granted. Here, the breach is not serious or significant and so relief from sanctions will usually be granted and it will not be necessary for the court to spend much time on the second and third stages. The default occurred without good reason is not the best answer. The second stage of the Denton test is that if the breach is serious and significant, the court will consider why the default occurred. As stage one is satisfied, the court does not need to consider the second stage in any depth. In any event, here, there is good reason for the default. The breach prevents the case being conducted efficiently and at proportionate cost is not the best answer. This is part of the third stage of the Denton test and deals with CPR 3.1(a). As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(a) does not point towards the refusal of relief as the breach did not prevent the litigation from being conducted efficiently and at proportionate cost, and did not imperil any further hearing date or otherwise disrupt the conduct of the litigation. The breach must be punished to enforce compliance with rules, practice directions and court orders is not the best answer. As stage one is satisfied, the court does not need to consider the third stage in any depth. In any event, here, CPR 3.1(b) does not point towards the refusal of relief as the breach is near the bottom of the range of seriousness. The breach is serious and significant is not the best answer. It is unlikely that the court would find this breach serious and significant.

Answer 97

B) £10,000 Correct. Well done! This is the correct limit (CPR 26.6).

Answer 98

B) False Correct. The court will only order an allocation hearing if it considers it necessary (CPR 26.5(4)).

Answer 99

A) No later than the date specified on the Notice of Proposed Allocation. Correct. After service of the Defence, the court will provisionally decide the track most suitable for the claim and issue a notice of proposed allocation. This will require the parties to file and serve Directions Questionnaires and will include the date by which this must be done (CPR 26.3(6)).

Answer 100

B) The normal track is the fast track. Correct! Well done. The claim is for under £25,000. When assessing financial value for allocation purposes, the court will disregard any claim for interest, costs and any contributory negligence (CPR 26.8(2)). The maximum value for this claim for allocation purposes is therefore £23,920. The fast track is the normal track for claims of this value only where the trial is estimated to be one day or less and where oral expert evidence is limited to one expert per party in relation to any expert field and expert evidence is limited to two different expert fields (CPR 26.6(5)) – the trial length and evidence are so limited in this case.

Answer 101

C) …can only recover limited fixed costs, court fees and witness expenses from an opponent.

Answer 102

A) There is no order for disclosure or exchange of witness statements. Parties are required file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing Correct. This is the normal direction for a small claims track dispute.

Answer 103

A) At least 7 days before any CMC Correct. The parties should attempt to agree them first. (CPR 29.4)

Answer 104

D) Determine directions for the future conduct of the case. Correct. Whilst the court will encourage settlement, and may assist with other issues, the court's primary concern is directions (CPR 29.2(1)).

Answer 105

D) Not less than 14 days before the first CMC Correct. (CPR 31.5)

Answer 106

D) The monetary value of the claim is less than £50,000 or if the party's budgeted costs do not exceed £25,000.

Answer 107

A) Estimated opponent's costs Correct. Your opponent will set out their incurred and estimated costs in their own budget.

Answer 108

C) Thursday 8 November Correct. Where the stated value of the claim is £50,000 or more, the budget must be filed not less than 21 days before the first CCMC. Counting the time correctly takes you to Thursday 8 November.

Answer 109

B) On Thursday 22 November at the latest Correct. You have correctly understood when the budget discussion reports must be filed, and you have counted time correctly.

Answer 110

B) The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO Correct. This is what the relevant rule states (CPR 3.15(2)).

Answer 111

B) The CMO records that the relevant part of the budget has been agreed. The court will not change the agreed figure Correct. The court cannot interfere with agreed parts of the budget: if it objects to the figure agreed, the court is likely to record a comment to that effect which a subsequent judge might take into account when it comes to assessment (CPR 3.15).

Answer 112

A) The judge will cap the costs at the figures in the budget, unless there is good reason not to do so Correct. This is what the relevant rule states (CPR 3.18), when combined with the general principle that a party cannot recover a greater sum for costs from an opponent than it has in fact incurred.

Answer 113

D) They will be treated as having filed a budget comprising only the applicable court fees. Correct! Well done (CPR 3.14).

Answer 114

A) A personal injury claim in the County Court valued at £45,000 Correct. This would appear to be a multi-track claim and, on these facts, does not fall into any of the exceptions to the costs management regime.

Answer 115

E) The claim is most likely to be allocated to the multi-track due to the estimated length of the trial and amount of expert evidence required. Correct. The fast track is the normal track for any claim which has a value of not more than £25,000 as here (CPR 26.6(4)(b)(i)), but only if the trial is likely to last no longer than one day and the oral expert evidence will be limited to one expert per party in each of no more than two fields (CPR 26.6(5)). As this is not the case in the claim here, the multi-track is the normal, and therefore likely, track for this claim (CPR 26.6(6)).

Answer 116

C) This is an in-time application for an extension of time (CPR 3.1(2)(a)) where although the court may grant the application, due to the fact that it will disrupt the conduct of the litigation, it is unlikely to grant it in full. Correct. The application is an in-time application, the requested extension of time for filing the costs budget would take us to the same date as the deadline for filing the budget discussion report. In order to provide the parties with the opportunity meaningfully to discuss the costs budgets and file an agreed budget discussion report, (whilst not affecting the date for the CCMC and bearing in mind the Overriding Objective), the court is likely to grant the application but not provide the full extension of time sought by the applicant.

Answer 117

B) The court will order the costs to be the subject of detailed assessment, if not agreed Correct answer: The court is most likely to order a detailed assessment of costs to take place in this multi-track case lasting for 3 days (CPR 44.6 and 44PD9.2). A summary assessment of costs is more likely to be ordered in a fast track case or at the conclusion of a hearing lasting not more than one day which does not apply here. A detailed assessment of costs by a costs officer takes place after the trial and costs are payable within 14 days of the date of the judgment if it states the amount (which it does not here) or, as in this case, if decided later, the date of the certificate which states the amount (CPR 44.7). Fixed costs (CPR 45) are not relevant to multi-track cases. The court is not likely to subject the costs to a detailed assessment or arrange a hearing of its own initiative.

Answer 118

D) Costs of the application to the claimant, in any event Correct. This means the defendant will have to pay the costs of the unsuccessful application to the claimant. This would be the 'usual rule' given that the application has been unsuccessful (CPR 44.2 and 44 PD 4.2).

Answer 119

B) The costs budget, the budget discussion report, the disclosure report and agreed directions CORRECT: This option is the most appropriate given that the parties appear to be in agreement over the areas to be covered by directions. The budget and budget discussion report (CPR 3.13), disclosure report (CPR 31.5(3)) and agreed directions (CPR 29.4) all need to be filed. The ‘directions questionnaire’ and ‘directions order’ are not documents prepared in anticipation of the costs and case management conference (26.3(6)).

Answer 120

E) Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege. CORRECT: The letter appears to be adverse to the claimant’s case (and so supports the defendant’s case) as it suggests there is flexibility over the completion date so undermining an element of the original claim. As such it is subject to standard disclosure and does not fall under either litigation privilege or legal advice privilege. This letter is open to inspection by the defendant.

Answer 121

B) Disclose the document to the defendant CORRECT: The duty of disclosure continues during proceedings and the duty is to disclose the document to every other party (CPR 31.11). Simply not referring to the document at trial is not an option – it could be that the document is one that is helpful to the other parties, so this would be unfair. There is no need to apply to court to disclose the document. However, if the claimant wants to rely on the document, the claimant may need to apply to court for permission to do so (CPR 31.21) as a party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

Answer 122

E) The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged. CORRECT: This document satisfies the test for standard disclosure. The document as a whole will be available for inspection. However, the parts that repeat the legal advice will be redacted as it will be subject to legal advice privilege – it is a confidential communication between a lawyer and a client where the client is repeating legal advice given to them to the rest of the directors on the board. Following the principles in the “Good Luck” case, the client effectively acts as the lawyer’s agent when he repeats the advice to the rest of the board and therefore this falls within the definition of legal advice privilege.

Answer 123

E) It is not something the claimant wishes to rely on, nor is it supportive of the defendant's case or adverse to either party's case. Correct. The obligation to give standard disclosure extends to videos – these are 'documents' (CPR 31.4). If a document is or was in the claimant's control, it does not matter that it was created by a third party or that the author is unknown. The disclosure obligation extends to documents which are no longer in the claimant's control. However, in this case liability has been admitted therefore it does not appear that this document is something which the claimant wishes to rely on, nor is it supportive of the defendant's case or adverse to either party's case which is now proceeding only in relation to quantum.

Answer 124

E) Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement. Correct. A party can inspect a document referred to in a witness statement (CPR 31.14). This is subject to the usual rules on privilege (which prevent a right to inspect), but privilege may have been waived depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.

Answer 125

Immediately after disclosure and inspection. The court will usually give directions for the exchange of witness statements at the allocation and case management stage and therefore exchange will not take place beforehand e.g. after the defendant has filed its defence or the parties have filed directions questionnaires. Exchange of witness statements is generally the step in the action that follows disclosure and inspection. This is because it is useful to review all disclosure documents prior to finalising witness statements as the witnesses may need to refer to the documents in their evidence.

Answer 126

None of the other answers is correct – the court has the power to control all of those Correct. The court can control the issues to be covered in witness statements, together with their number and length.

Answer 127

As evidence in chief Any fact which needs to be proved by evidence of witnesses at trial will be by oral evidence (CPR 32.2(1)(a)). However, a witness statement usually stands as evidence in chief at the trial (CPR 32.5(2)) so that in this scenario the claimant would not have to take oral evidence from the witness. The witness is then cross-examined by the other party, here the defendant, and re-examined by the claimant.

Answer 128

A witness statement for an interim hearing has extra paragraphs relating to the reason for the statement and the position taken in relation to the application This is correct. In relation to the other answers: - There is no difference in the statement of truth - The evidence can be within the application notice if it is short or it may already be contained in a statement of case, but it can also be in a witness statement instead. - A witness statement is always given by a specific individual, even if it is being given on behalf of a party which is a company or partnership.

Answer 129

make this witness statement from matters within my knowledge or belief save where the contrary appears. Where I refer to matters of which I have been told by others, those matters are true to the best of my knowledge and the source of the information appears.

Answer 130

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Answer 131

An application for a search order Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.

Answer 132

An application for a freezing order. Correct. Well done! The other applications listed do not require evidence in the form of an affidavit.

Answer 133

An affidavit must be sworn before a person authorised to administer affidavits Correct. Well done! In terms of the other answers: - there is no statement of truth in an affidavit. - what is said in relation to proceedings for contempt of court is roughly correct in relation to witness statements, but incorrect in relation to affidavits. - it is wrong to say that an affidavit is directly transcribed from an oral account.

Answer 134

Hearsay evidence Hearsay evidence is the correct answer. Hearsay evidence is considered less reliable than direct evidence and so there are procedural safeguards to ensure hearsay can be carefully scrutinised eg by requesting particulars of the hearsay or by challenging its weight (Civil Evidence Act 1995 and CPR 33). Opinion evidence is not the correct answer; the special rules relating to opinion evidence are contained in the Civil Evidence Act 1972. The element on expert evidence contains more details. Evidence which is privileged is not the correct answer; the special rules for privilege are contained in case law. The elements on disclosure and inspection contain more details. Oral evidence is not the correct answer; there are not special ‘evidential’ rules, but procedural requirements regarding oral evidence of witnesses of fact (CPR 32) and requirements regarding oral evidence of experts (CPR 35). Expert evidence is not the correct answer; there are not special ‘evidential’ rules, but procedural requirements regarding expert evidence (CPR 35).

Answer 135

Exchange witness statements The correct answer is exchange of witness statements. No ‘formal’ notice is required as notice is deemed on exchange. This means it is incorrect to say that it is necessary to exchange witness statements and provide formal notice of the hearsay, or to telephone the other party, or that no notice is required, or that formal notice is required

Answer 136

It is not hearsay. He is making a statement in court of facts that he witnessed himself. This is the correct answer. John's statement is not hearsay. He is making a statement in court of facts that he witnessed himself.

Answer 137

The orthopaedic surgeon giving an opinion on the driver’s broken leg. This is the correct answer. The general rule is that opinions are not admissible. An exception is expert evidence. An expert must give an opinion on a matter upon which the expert is qualified. An orthopaedic surgeon deals with the skeleton and joints and so is an expert in giving an opinion on the driver’s broken leg. An orthopaedic surgeon is not an expert in a punctured lung or brain damage; these injuries would be outside the orthopaedic surgeon’s expertise. The judge is the expert in law. Another exception to the general rule is perceived facts. The orthopaedic surgeon is not a witness conveying relevant facts personally perceived by the expert.

Answer 138

If the defendant’s solicitors do not exchange the expert’s report by the date set out in the court’s directions, the evidence cannot be used without the court's permission This is the correct answer. An expert’s report must be exchanged by the date set out in the court’s directions otherwise the evidence cannot be used without the court’s permission (CPR 35.13). Permission (CPR 35.4) is to call an expert or to rely on the written expert’s report at trial; permission is not needed to ‘instruct’ the expert. Permission is usually sought in the directions questionnaire and will be dealt with in the directions issued at the case management stage. The name of the actuarial expert does not need to be provided in the directions questionnaire unless it is practicable to do so. The duty of the expert will be to the court and this overrides any obligation to the defendant’s solicitor to maximise the claim.

Answer 139

An order confirming the date that the report of the expert shall be filed at court from the claimant This is the correct answer. Where there is an order requiring an act by an expert, the party instructing the expert must serve the order on the expert (35 PD 8). In the case of single joint experts, this is the claimant (not the defendant or the court). A discussion of experts and a statement of issues would not be appropriate for a single joint expert, but are tools used to reduce the issues where each party instructs their own expert.

Answer 140

The defendant’s expert should file a written request with the court for directions This is the best answer. The rules allow an expert to submit written requests for directions to the court to help them carry out their task (CPR 35.14). This would be better than refusing to answer the questions, answering a number of questions or ignoring the request because the rules do allow the claimant to ask the expert questions within 28 days of the expert’s report (CPR 35.6). The expert’s answers become part of the report and so if the expert objects to the questions it is important that the issue is dealt with by the court rather than simply answering the questions.

Answer 141

The claimant should put written questions to the expert asking for clarification about the approach taken to the calculation of loss CORRECT: On receiving the report from the single joint expert the claimant should put written questions to the expert (CPR 35.6). This will help it understand how the expert came to their conclusions. It is not appropriate for the report to be struck out as the court’s power relates to striking out a statement of case and not an expert’s report (CPR 3.4). The claimant may indeed want to cross-examine the expert at the final hearing but does not need to wait until then before taking pro-active steps. The claimant cannot rely on the evidence of a new expert without the court’s permission and it is premature to seek this (CPR 35.4). The claimant will have seen the instructions to the single joint expert (CPR 35.8).

Answer 142

Retain the paragraph from the witness statement and obtain a witness statement from the Finance Director. CORRECT: The paragraph in the witness statement contains hearsay evidence which is an oral or written statement, made out of court, adduced in court to prove the truth of the matter stated. (Hearsay evidence can sometimes be understood as ‘back-up’ evidence. In other words, the witness has a view about the case and someone ‘says’ something, repeated in the witness statement which ‘backs up’ the witness’s point of view). Hearsay evidence is admissible in civil proceedings by s.1 Civil Evidence Act 1995 (CEA 1995) and so there is no need to remove it. However, if a witness statement can be obtained from the Finance Director, then this is much more persuasive and valuable. It makes the inclusion of the paragraph in the witness statement of the Managing Director much less necessary, but there may still be some benefit in retaining it. Note that even if it was retained, there would be no need to serve a separate notice that the claimant intends to rely on the evidence at trial.

Answer 143

Ask the Defendant for an extension of time for exchange of witness statements Correct. It is important not to miss the deadline because if a witness statement for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission (CPR 32.10) – 'notifying' the court or the opponent is not adequate to avoid the sanction. An application to the court should therefore be made before any deadline expires. However, the other side has the power to grant the extension sought, and this would avoid the need for a court application, so this should be explored first. Witness statements should not be served in draft form, as the draft could give away something prejudicial.

Answer 144

The sentence is likely to be admissible evidence of fact CORRECT: The sentence is evidence of fact given by the witness who would have been involved in the events at the time and had the knowledge (as Financial Director) to state that the financial assessment was not accurate. The witness would no doubt go on to give detail of where and why elements of the advice given were inaccurate, which again would be matters of fact. As such, the sentence does not consist of an opinion whether admissible or inadmissible ie it is not based on the witness’s value judgement of the facts. The sentence does not contain any information which falls under any head of privilege (privileged information is, in any event, admissible, if the party/ies entitled to claim privilege wish to waive this).

Answer 145

With a jurat on the part of the managing director personally, sworn before someone who is authorised to administer affidavits. Correct, well done! An affidavit is needed because the application is for a search order. An affidavit is signed off with a jurat rather than a statement of truth, and must be sworn before someone who is authorised to administer affidavits. An affidavit needs to be signed by someone personally – it is not given by a company or partnership (this is also true of witness statements).

Answer 146

14 days Correct. (CPR 36.14).

Answer 147

Yes it is possible to make a time limited offer. The offer can be automatically withdrawn in accordance with its terms, at the end of a specified period of time. However, the time limit must be after the expiry of the relevant period. Correct. (CPR 36.9(4)(b)). Practically, this means that the Part 36 offer will state that it will be withdrawn by a set date or time, after the expiry of the relevant period, if it has not been accepted.

Answer 148

Simon should immediately serve a notice of withdrawal. It would then be for Clinton to decide whether or not to serve notice of acceptance. If Clinton did serve notice of acceptance Simon should apply to the court for permission to withdraw the offer within 7 days of Clinton’s notice of acceptance. Simon would argue that the court should grant permission as there has been a change in circumstances since the original offer and it is in the interests of justice. Correct. Simon’s Part 36 offer of £750,000 is now very likely to be too high as the injury is worth less than the Part 36 offer (in the light of the evidence in the recording and Clinton playing football for his local football team during which he scores a goal with an overhead kick). As soon as Simon serves the recording evidence (or realises that Simon has it) Clinton may very well accept the offer. In order to prevent acceptance Simon needs IMMEDIATELY to serve a notice to withdraw the offer. Clinton then has a choice whether to accept the offer or allow the withdrawal to take effect. If Clinton does not accept the offer at that stage the offer will be withdrawn at the expiry of the relevant period. If Clinton does accept the Part 36 offer then Simon will need to apply to the court to withdraw the offer within 7 days of Clinton’s notice of acceptance (CPR 36.10).

Answer 149

No effect. Landsdown will get its damages and it will also most likely get its costs paid by Gothic pursuant to the normal rules on costs (CPR 44.2). Correct. The claimant (Landsdown) has won. Importantly, Landsdown has obtained more than the offer of £350,000 (it has been awarded £380,000). In other words it obtained a judgment 'more advantageous' than the defendant's (Gothic's) Part 36 offer. A split costs order would only be appropriate if Landsdown had won, but failed to obtain a more advantageous judgment than Gothic's Part 36 offer eg if Landsdown had been awarded £340,000.

Answer 150

All the other answers are consequences Correct. All the other answers are consequences (CPR 36.17).

Answer 151

C will get its damages and a split costs order. D will have to pay C's costs until the expiry of the relevant period. Thereafter, C will have to pay D's costs plus interest Correct. A split costs order is appropriate because C has won, but failed to obtain a more advantageous judgment than D's Part 36 offer. The costs are therefore 'split' as set out in this answer, and D is also awarded interest on those costs. Note, this is the result, unless the court considers it unjust.

Answer 152

Expert determination Well done. In expert determination, an independent expert reaches a binding decision on the matter referred to them. Expert appraisal does not result in a binding decision – the expert provides a non-binding assessment which might influence future settlement discussions. Neither negotiation nor mediation will result in binding outcomes unless they are successful, and even then the outcomes should not be considered 'decisions', because they are outcomes mutually agreed by the parties, not decided by a third party

Answer 153

It sets a binding precedent. Well done. A resolution reached by ADR will rarely, if ever, amount to a binding precedent. The other answers are often advantages of ADR, although whether they are advantages in any particular case depends on the facts of that case.

Answer 154

After a dispute has arisen or when entering into a contract before any dispute has arisen. Well done. Parties might include an arbitration clause when negotiating a contract, which provides for any dispute in relation to that contract to be referred to arbitration. However, even if the parties do not include such a clause, they can refer a dispute to arbitration once that dispute arises, if they both agree to this.

Answer 155

Almost certain Well done. The vast majority of cases are suitable for ADR, if ADR is appropriately chosen and timed.

Answer 156

The court can provide information about ADR and encourage the parties to consider ADR. Well done. The court cannot compel parties to engage in ADR, although it can impose sanctions on a party that unreasonably refuses to engage in ADR.

Answer 157

The starting point is that a party who has refused to engage in ADR should pay the costs from the refusal onwards, unless factors point to a different order. Well done. This statement is incorrect. The contrary is the case – it is for the unsuccessful party to show the court why it should depart from the general rule that the unsuccessful party should pay the successful party's costs. The extent to which other settlement methods have been attempted, and the prospects of ADR succeeding, are also both relevant considerations.

Answer 158

To order a party to attend (but not necessarily to make an offer at) a mediation Well done. This is beyond the court's powers.

Answer 159

False Well done. Failing to propose ADR is generally less likely to be considered conduct worthy of criticism than refusing to engage in ADR, although either can attract criticism and sanctions.

Answer 160

The claimant Correct. Discontinuance is available to a claimant, and only a claimant.

Answer 161

The claimant will be required to pay the costs of Defendant A up to discontinuance, but not those of Defendant B. Correct. The claimant is liable for costs relating only to the part of the proceedings which they are discontinuing (CPR 38.6).

Answer 162

Upon service of the notice of discontinuance Correct. (CPR 38.5(1)).

Answer 163

Filing a notice at court and serving it on all other parties.

Answer 164

Arbitration allows for easier international enforcement than litigation in the English courts Correct. It is often easier to enforce an arbitration agreement (the reason for this is that the vast majority of countries are signatories to the New York Convention which means arbitration awards can be enforced internationally, whereas court judgments are more difficult to enforce and usually depend on there being a specific agreement between the two countries). This is important to the client given the supplier is in another jurisdiction because any judgment/award needs to be enforceable. In relation to the other answers, arbitration is rarely cheaper than litigation if the parties follow a very long and complicated process and the client has not said it is concerned about costs. Whilst the arbitration process allows for some flexibility in the process (subject to the mandatory rules in the Arbitration Act 1996 which provides a framework where the seat of the arbitration is in England/Wales), this is not a benefit of arbitration that is likely to be ‘most attractive’ to the client on the facts. Whilst arbitrators can have more expertise if available in the particular field (and this is a major benefit of arbitration), in this case, it is not something the client has mentioned it is concerned about. In fact, the client has previously been happy with judicial adjudication in the courts. Finally, arbitration allows for a legally correct solution to be achieved if the parties agree this, but so do court proceedings. So again this is not a benefit of arbitration that is likely to be ‘most attractive’ to your client.

Answer 165

Mediation is a less adversarial process than court proceedings so it will enable the parties to maintain their commercial relationship in future Correct. Mediation is less adversarial than court proceedings and so is a good choice if the parties wish to maintain their commercial relationship after the dispute has been resolved. In terms of the other answers, mediation will save costs if successful (although probably not otherwise), but this does not appear to be a key concern for your client. It will shorten the dispute if successful, but not because the mediator can make a decision – they cannot, they simply facilitate settlement. One of the benefits of mediation is that it is more likely to be a commercial resolution rather than a legally correct one, but this is not a clear benefit to our client who believes it has a strong case that will be decided in its favour. Mediation is indeed confidential, but your client has not identified this as a significant concern – perhaps the product recall has already publicised this issue so that this is no longer a critical concern

Answer 166

Discontinue the claim against Company B Correct. The Claimant can discontinue its claim against Company B by filing a notice of discontinuance at court and serving a copy of it on every other party to the proceedings (CPR 38.3(1)). Where there is more than one defendant, the notice of discontinuance must specify against which Defendant(s) the claim is discontinued (CPR 38.3(4)). The Claimant is likely to be required to pay Company B's costs, but better to face that now than after losing against Company B at trial. In terms of the other answers, discontinuing against Company A and Company B and issuing new proceedings against Company A is going to be much more costly, and could be an abuse of process. A stay of proceedings would not solve the problem, nor are there grounds for summary judgment. The Claimant would not apply to strike out its own statement of case.

Answer 167

The claimant may accept the offer within the relevant period and obtain damages and costs to the date the notice of acceptance is served. Correct. A Part 36 offer may be made at any time, including before the commencement of proceedings (CPR 36.7). Pre-issue Part 36 offers have the usual Part 36 consequences, including recoverable pre-action costs, upon acceptance after issue of proceedings (or upon judgment being given).

Answer 168

The defendant will pay the claimant's costs before the expiry of the relevant period, and the claimant will pay the defendant’s costs from the expiry of the relevant period, pursuant to CPR Part 36, because the claimant failed to beat the defendant's offer Correct - This is a Defendant’s part 36 offer. The claimant has failed to obtain judgment more advantageous than the offer (CPR 36.17(1)(a)) as it has obtained a judgment the same as the offer. This triggers Part 36 and it is likely that a split costs order (CPR 36.17(3)) may 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 from the claimant thereafter. Note, however, that this outcome is not guaranteed – the court will not impose these Part 36 consequences if it considers them to be unjust.