Formative Flashcards
In a civil dispute, a claimant makes a Part 36 offer in the sum of £90,000 to the defendant 3 months before trial. The defendant replies the same week with a Part 36 offer to pay £45,000. Neither party accepts the other party’s offer. At trial, the claimant obtains a judgment against the defendant for £70,000.
What is the court most likely to order in relation to costs?
Select one alternative:
* The defendant to pay the claimant’s costs of the claim.
* The claimant to pay the defendant’s costs of the claim.
* The defendant will pay the claimant’s costs until the expiry of the relevant period of the claimant’s offer, and the claimant will pay the defendant’s costs after this point.
* The claimant will pay the defendant’s costs until the expiry of the relevant period of the defendant’s offer, and the defendant will pay the claimant’s costs after this point.
* The defendant will pay the claimant’s costs until the expiry of the relevant period of the defendant’s offer, and the defendant will pay the claimant’s costs with interest after this point.
- The defendant to pay the claimant’s costs of the claim.
Part 36 has no consequences in these circumstances – in the broadest of terms, neither party has done the same as, or better than, it offered (CPR 36.17). Accordingly the general rule in relation to costs applies – the unsuccessful party should pay the costs of the successful party (CPR 44.2). The claimant is the successful party – it received a substantial award at trial.
A catering company has issued proceedings alleging professional negligence on the part of the catering company’s accountants. The proceedings have been allocated to the multitrack. In their defence, the accountants deny negligence, and raise arguments in relation to the technicalities of accounting which had not been anticipated by the catering company. The catering company wishes to instruct an expert accountant to provide a view on the strength of the defendant accountants’ arguments (the ‘Intended Instructions’), in order that the catering company can decide how to proceed.
Which of the following is the best advice to give to the client as to its liberty to instruct an expert in this way?
Select one alternative:
The court’s permission is not required for the Intended Instructions if the parties agree on an expert, otherwise it is required.
The court’s permission is required for the Intended Instructions.
The court’s permission is not required for the Intended Instructions if the catering company is prepared to disclose the expert’s advice.
The court’s permission is not required for the Intended Instructions.
The claim is allocated to the multi-track and this constitutes the court’s permission for the Intended Instructions.
- The court’s permission is not required for the Intended Instructions.
A common misconception is that the court’s permission is required to instruct an expert witness whereas, in fact, a party may instruct as many experts as it likes. For this reason, the court’s permission is not needed for the Intended Instructions. The court’s permission is needed, however, to call an expert or rely upon a written expert’s report at trial (CPR 35.4(1)).
A claimant company has made a without notice application for an interim prohibitory injunction to prevent a former employee from disclosing confidential information in breach of her employment contract. The claimant’s solicitors are aware of a reported case which is likely to have a material and unhelpful effect on the outcome of the claimant’s application.
Should the claimant’s legal representative draw the court’s attention to the unhelpful case?
Select one alternative:
Yes, because the application is for an injunction.
No, because the defendant can draw the court’s attention to the case at a future hearing.
Yes, because the representative is obliged to draw the court’s attention to relevant cases.
Yes, because the application is made without notice.
No, because it is not in the claimant’s best interests to do so.
Yes, because the representative is obliged to draw the court’s attention to relevant cases.
Pursuant to Rule 2.7 of the Code of Conduct, a solicitor must draw the court’s attention to relevant cases which are likely to have a material effect on the outcome of the proceedings. This applies even though this might not be in the client’s best interests. Accordingly, the claimant’s legal representative must draw the court’s attention to the unhelpful case. This is true whether or not an application is without notice and whether or not it relates to an injunction, albeit in practice compliance with this duty may require more careful attention in the case of an application without notice for an injunction than in relation to many other types of application. It cannot simply be left to the defendant to draw the relevant case to the court’s attention.
An English company based in London supplies noise insulation services to restaurants. It has a dispute regarding non-payment of an invoice sent to a sole trader who is an individual domiciled in Italy. The invoice relates to services supplied in relation to a restaurant in Manchester. The written contract between the English company and the individual has an exclusive jurisdiction clause stipulating that all disputes must be heard in the courts of Italy.
In which courts must the dispute be heard?
Select one alternative:
* English courts, because of the domicile of the English company.
* English courts, because the matter concerns land in England.
* Italian courts, because of the domicile of the individual.
* Either the English or Italian courts.
* Italian courts, because of the exclusive jurisdiction clause.
Italian courts, because of the exclusive jurisdiction clause.
This is a clause relating to a civil / commercial matter, in a written contract, granting jurisdiction exclusively to a state contracted to the Hague Convention. The dispute is not of a type excluded from the Hague Convention. Accordingly, the exclusive jurisdiction clause is effective, and proceedings must be brought in Italy. In these circumstances, the fact that the defendant is domiciled in Italy is not really relevant.
5
A claimant in a professional negligence claim has been advised that it might be unsuccessful at trial due to the real possibility that the court determines a pivotal point of law against the claimant. After being properly advised, the claimant instructs that if this does indeed happen, it wishes to appeal. On the day of trial, the judge gives judgment for the defendant due to determining the point of law against the claimant, and states that if a party wishes to appeal the decision then they must apply for permission to do so within 14 days.
When would be the best time for the claimant to apply for permission to appeal?
Select one alternative:
On the day of the trial.
As soon as reasonably practicable.
Within the time period set by the court.
Within 21 days of the court’s decision.
Within a later period of time as ordered by the court after an application to extend the time for filing an appeal notice.
On the day of the trial.
While the other answers are plausible, they are not necessarily the quickest route to appeal. Applying on the day of trial to the trial judge is the best answer because this would save time and means that the claimant does not have to wait longer than necessary. In the event that this is unsuccessful, the claimant is still permitted to apply again for permission to the appellate court within the time period set by the court, so has lost nothing.
An employee is suing their employer for negligence following an accident at work. The employer’s solicitors instructed an orthopaedic medical expert to prepare a report on the employee’s injuries and the consequent effect on the employee’s life. The expert’s report commented on areas outside of their area in a way very much favourable to the employee.
Which of the following best explains why the employer can refuse to allow inspection of this report in the event that an order for standard disclosure is made?
Select one alternative:
The report attracts without prejudice privilege.
The report is a form of expert evidence.
The report attracts legal advice privilege.
The report attracts litigation privilege.
There will no obligation to disclose the report, and therefore no obligation to allow inspection of it.
The report attracts litigation privilege.
Litigation Privilege covers confidential communications between a lawyer and client or between one of them and a third party where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of the litigation which was at the time reasonably in prospect. In this scenario, the expert report is a confidential communication between the solicitor and a third party (the expert) produced for the sole purpose of advising the employer about the employee’s injuries for the purpose of litigation already started. Legal advice privilege only covers confidential communications between a lawyer and their client – this report is not such a communication. The expert report is not a genuine attempt to settle, so cannot attract without prejudice privilege. The expert report is not ‘expert evidence’ until such time as it is deployed as such – and the employer does not want to use it as expert evidence. It would be wrong to say that there would be no obligation to disclose the expert report: it is a document, in the control of the employer, which is adverse to the employer’s case and supportive of the employee’s case, and so must be disclosed (but not, for the reasons given above, inspected).
7
A holidaymaker, normally resident in England, is on holiday in Spain when the holidaymaker’s negligent driving causes severe whiplash to an English businessperson. The English businessperson is in Spain for a short work visit. The businessperson wishes to bring a claim in negligence against the holidaymaker.
Assuming proceedings are brought appropriately in the courts of England and Wales, which country’s laws will apply to the dispute?
Select one alternative:
Spain’s laws, because the accident happened in Spain.
England’s laws, because that is where the defendant (the businessperson) resides.
England’s laws, because both parties normally reside in England.
England’s laws, because the proceedings have been brought in England.
Spain’s laws, because the whiplash was suffered in Spain.
- England’s laws, because both parties normally reside in England.
This is a tortious matter in relation to which the claimant and defendant habitually reside in the same country. This points to that country’s laws applying to the dispute. The parties have not validly chosen any other law, the tort is not manifestly more closely connected with another country, and none of the ‘special regimes’ in the relevant regulation apply (Rome II Regulation).
A civil dispute is approaching trial. Upon reviewing documentation not available to the other party or the court, the claimant’s solicitor realises that the claimant has said something untruthful in their witness statement. The witness statement is included in the trial bundles filed at court. The claimant’s solicitor raises this with the claimant, who refuses to correct it or identify the untruthful part to the defendant or the court.
Which of the following is the most appropriate course of action for the claimant’s solicitor to take?
Select one alternative:
Disclose the situation to the defendant.
Apply to court for guidance as to what to do next.
Disclose the situation to the Court.
Take steps to cease acting for the claimant.
Apply to court to retract the claimant’s witness statement.
Take steps to cease acting for the claimant.
Paragraph 1.4 of the Solicitor’s Code of Conduct provides that a solicitor should not mislead or attempt to mislead clients, the court or others, either by the solicitor’s own acts or omissions or allowing or being complicit in the acts or omissions of others (including the client). By continuing to represent the client, the solicitor would be complicit in the client misleading the court and the defendant. The solicitor must therefore cease to act. It is not permissible to disclose the situation to the Court or to the defendant (unless the claimant permits this). This would be a breach of confidence. There is no option to apply to court to retract the claimant’s witness statement, and in any event, this would not necessarily ‘cure’ the misleading impression already created by the claimant. Furthermore, the claimant has not instructed / permitted its solicitor to do this. There is no need to apply to court for guidance.
A claimant is bringing a breach of contract claim against a defendant seeking £400,000. After exchange of witness evidence, the defendant serves on the claimant a Part 36 offer to settle in the sum of £300,000. The claimant rejects this offer and the case proceeds to trial where the claimant is awarded £290,000.
Which of the following statements best describes the likely order in relation to costs?
Select one alternative:
The defendant will pay the claimant’s costs (for the entire claim).
The claimant will pay the defendant’s costs (for the entire claim).
The defendant will pay the claimant’s costs from the expiry of the relevant period until trial, and the claimant will pay the defendant’s costs prior to this.
The claimant will pay the defendant’s costs (for the entire claim), plus interest on those costs from the expiry of the relevant period until trial.
The claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this.
The claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this.
The correct answer is the claimant will pay the defendant’s costs from the expiry of the relevant period until trial, and the defendant will pay the claimant’s costs prior to this. This is a Defendant’s offer. The claimant has failed to obtain a result more advantageous than the offer (CPR 36.17(1)(a)). It is likely that a split costs order under CPR 36.17(3) will apply where the claimant will get its costs from the defendant up to the date on which the relevant period expires and the defendant will get its costs thereafter, although the court can make a different order if this split costs order would be unjust. It is not correct to say ‘the claimant will pay the defendant’s costs (for the entire claim), plus interest on those costs from the expiry of the relevant period until trial’ because the likely order is costs FROM the date on which the relevant period expired (and interest on those costs) unless unjust.
A publisher notices that a bookshop in Manchester is selling books which infringe copyright owned by the publisher. The publisher is considering bringing proceedings against the manufacturer of the books (which is not the bookshop). The publisher does not know who this is. However, the owner of a bookshop based in Birmingham, which has not been involved with the infringing books, has by email indicated that it does know who the manufacturer is.
Which of the following is the most likely reason for the failure of an application by the publisher for the Birmingham bookshop to disclose the identity of the manufacturer?
Select one alternative:
Proceedings have not yet been issued against the manufacturer.
The application is not proportionate.
The bookshop based in Birmingham is not sufficiently involved in the copyright infringement.
There is no evidence that the identity of the manufacturer is recorded in a document.
The application is not necessary in order for the Birmingham bookshop to bring proceedings.
The bookshop based in Birmingham is not sufficiently involved in the copyright infringement.
An application pre-action against a ‘non-party’ in order to identify the identity of the intended defendant is an application for a Norwich Pharmacal order. There are three conditions that must be satisfied for the court to exercise the power to order Norwich Pharmacal relief. They are: - a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer - here there is copyright infringement; - there must be the need for an order to enable action to be brought against the ultimate wrongdoer – this appears to be satisfied, and it is not clear that there is any other way to obtain the information - the person against whom the order is sought must (i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and (ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued. On point (i), the applicant is likely to struggle – there is no evidence of involvement on the part of the Birmingham bookshop, it appears to be just a witness. Accordingly, the application is likely to fail because the bookshop based in Birmingham is not sufficiently involved in the copyright infringement. Putting this issue on one side, it appears the application would be justified as both necessary and proportionate. It is true that there is no evidence that the identity of the manufacturer is recorded in a document, but a Norwich Pharmacal order can require the respondent to provide information, not only disclose documents.
A chemical engineering company and a pharmaceutical company are entering into a contract in relation to a new business relationship which they hope will continue for several years. The intended business is highly confidential and has the potential to be extremely lucrative for both parties. The parties are currently on good terms and cannot envisage any disputes arising. The companies are considering including an arbitration clause in their contract.
Which of the following is the most compelling advantage of arbitration over litigation for these parties?
Select one alternative:
Arbitration is quicker.
Arbitration is less expensive.
Arbitration is confidential.
Arbitration will lead to a binding decision.
The parties can choose the arbitrator.
Arbitration is confidential.
Confidentiality is clearly important to the parties. An arbitration is confidential, litigation generally is not. This is a compelling advantage of arbitration over litigation for these parties. It is not true that arbitration is necessarily quicker and less expensive than litigation, and the facts do not suggest that these are the most significant immediate concerns for the parties. It is true that parties can choose an arbitrator (but cannot choose their judge), but the facts do not suggest this would be a significant advantage for the parties. It is true that arbitration will lead to a binding decision, but so will litigation – so this is not an advantage of arbitration compared to litigation.
A claimant makes a Part 36 offer to a defendant by letter (the ‘Letter’). The offer is not accepted. In the Letter, the claimant sets out an analysis of the strengths and weaknesses of the claim to justify the offer being made. The claim reaches trial. The defendant wishes to show the Letter to the judge who will determine the claim.
Is the defendant permitted to show the Letter to the judge who will determine the claim?
Select one alternative:
Yes, because the Letter is not confidential as between the parties.
No, because the Letter is conveying a Part 36 offer.
No, because the Letter was written in relation to the litigation.
Yes, because the Letter is conveying a Part 36 offer.
Yes, because the Letter is correspondence between the parties.
No, because the Letter is conveying a Part 36 offer.
A Part 36 offer is treated as ‘without prejudice except as to costs’ and the fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided (CPR 36.16(1) and (2)). Even if this was not specifically provided for in the CPR, a Part 36 offer would almost always be a genuine attempt to settle, and therefore would attract without prejudice privilege, and could not be shown to the trial judge. The fact that the letter was written in relation to the litigation does not mean it cannot be shown to the trial judge – open correspondence between the parties could generally be shown to a trial judge. Given the provisions specifically relating to Part 36 offers and the fact that this would attract privilege as set out above, the fact that the letter is correspondence between the parties and not confidential as between the parties is not relevant.
In a negligence action, the High Court Judge hearing the trial gives judgment in favour of the Claimant. The Defendant considers that the judge misunderstood the relevant law and that the judge’s decision was wrong. The judge has refused the Defendant permission to appeal the decision.
What is the best advice for the Defendant if the Defendant still wishes to pursue an appeal?
Select one alternative:
The Defendant should request permission to appeal from a High Court Judge.
The Defendant should request permission to appeal from a Circuit Judge.
It is not possible to pursue an appeal further because permission has been refused by a High Court Judge.
It is not possible to pursue an appeal further because the decision to be appealed was made by a High Court Judge.
The Defendant should request permission to appeal from the Court of Appeal.
- The Defendant should request permission to appeal from the Court of Appeal.
An application for permission to appeal may be made— (a) to the lower court at the hearing at which the decision to be appealed was made (in this case the High Court – that request has already been made and refused); or (b) to the appeal court in an appeal notice (in this case the Court of Appeal). (CPR 52.3(2) and 52A PD 3.5). Option (b) should therefore now be pursued. For the above reasons, it is wrong to say that it is not possible to pursue an appeal.
A farmer is bringing a claim in nuisance against a manufacturer. The parties have carried out standard disclosure and witness statements are due to be exchanged tomorrow. The manufacturer realises that one of its witness statements refers to a document which has not previously been disclosed.
Which of the following is the best course of action for the manufacturer to take?
Select one alternative:
Establish if the document is disclosable, and if it is, it should be disclosed to the farmer immediately.
Establish if the document is disclosable, and if it is, give notice of that fact when exchanging witness statements.
Establish whether disclosure of the document is desirable, and if it is not, remove reference to the document from the witness statement.
Establish if the document is disclosable, and if it is, no further action is required.
Establish if the document is privileged, and if it is not, serve a supplemental list of documents.
- Establish if the document is disclosable, and if it is, it should be disclosed to the farmer immediately.
The duty of disclosure is an ongoing duty (CPR 31.11). Upon finding a document which might be disclosable and which has not been disclosed, a party needs to consider whether it should be disclosed. If it should be disclosed, this should be done immediately – doing nothing or waiting for exchange of witness statements is inadequate. If it should be disclosed, then removing reference to it from the witness statement does not change the fact that it should be disclosed. Even if the document is privileged, it still needs to be disclosed: privilege provides a ground for refusing inspection, not disclosure.
15
A trial is due to start on Monday 28 November and the trial bundles need to be filed with the court. There are no bank holidays in the three weeks preceding Monday 28 November.
What is the latest date by which the trial bundles must be lodged with the court?
Select one alternative:
Thursday 24 November.
Tuesday 22 November.
Monday 21 November.
Wednesday 23 November.
Monday 14 November.
Tuesday 22 November.
The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial (CPR 39.5(2)). There must be a clear day at the beginning and at the end of the period - the trial is an event which means that day does not count when counting – it must be a clear day. (CPR 2.8). To work out the last day (‘not less than 3 days before the start of the trial’), one excludes weekends (CPR 2.8(4)). This means Tuesday 22 November is the last date. Day one is Wednesday 23 November, day two is Thursday 24 November and day three is Friday 25 November. You may find it easier to count backwards from the trial.
