Paper 2 - Civil Flashcards
(40 cards)
Charlotte has been given permission to add Raoul as a Second Defendant to the proceedings she has brought against Bob, and to serve amended particulars of claim. Bob served his defence two months ago, in which he made allegations against Raoul.
Following Raoul being added to the claim, Bob has decided to claim for an indemnity or contribution against Raoul.
Charlotte served her amended particulars of claim on Bob and Raoul 14 days ago.
Raoul served his defence on Charlotte and Bob 7 days ago.
What is the correct advice to give Bob as to the procedure by which he may make a claim for contribution or indemnity against Raoul and the permission he will require, if any?
[A] Bob should apply for permission to amend his defence to include a claim for contribution or indemnity against Raoul.
[B] Bob will not require the court’s permission to make the claim for contribution or indemnity if he serves a notice containing a statement of the nature and grounds of his additional claim within 28 days of service of Raoul’s defence.
[C] Bob will not require the court’s permission to make the claim for contribution or indemnity if he serves a notice containing a statement of the nature and grounds of his additional claim within 28 days of service of the amended particulars of claim.
[D] Bob should apply for permission to serve notice of his additional claim as he did not serve it with his defence.
Answer:
[B] Bob will not require the court’s permission to make the claim for contribution or indemnity if he serves a notice containing a statement of the nature and grounds of his additional claim within 28 days of service of Raoul’s defence.
Rationale:
[A] is wrong as Bob has no need to amend his Defence if allegations have already been raised against Raoul and can follow CPR 20.6 by making a claim by filing a notice containing a statement of the nature and grounds of his additional claim; and (b) serving the notice on that party.
[B] is correct and follows the provisions of CPR 20.6(2)(ii)
[C] is wrong - see CPR 20.6(2)(ii)
[D] is wrong - the court’s permission is not needed provided Bob serves the notice within 28 days of service of Raoul’s defence.
Eileen suffered spinal injuries in a road traffic accident. She has brought a claim in negligence against John, the other driver whom she alleges caused the accident.
John admits liability and Eileen applies for an order that John should make an interim payment to her in advance of the trial to cover the cost of adaptations to her home needed to allow her to cope better with her injuries.
The application is listed for a hearing on Friday 22 December 2023. John intends to rely on written evidence at the hearing to contest the size of the payment sought.
What is the latest date by which this evidence must be filed and served?
[A] Thursday 7 December 2023
[B] Thursday 14 December 2023
[C] Friday 15 December 2023
[D] Friday 8 December 2023
Answer:
[B] Thursday 14 December 2023
Rationale:
[A] is incorrect – see explanation for [B].
[B] CORRECT. If the respondent to an application for an interim payment wishes to rely on written evidence at the hearing, this must be filed and served at least 7 days before the hearing (CPR 25.6(4)). Where the end of a period specified in the rules is defined by reference to an event, as this period is, the day on which the period begins and the day on which the event occurs are not included (CPR 2.8, SA13). Therefore, the deadline is 14 December. Options [A], [C] and [D] are incorrect for the reasons given in [B].
[C] is incorrect – see explanation for [B].
[D] is incorrect – see explanation for [B].
Which of the following statements is correct as to the nature of a disclosure statement?
[A] It is a list of documents in the relevant practice form, pursuant to an order for standard disclosure.
[B] It sets out the extent of the search made and certifies an understanding of the duty to disclose documents and that the duty has been carried out to the best of the party’s knowledge.
[C] It is an agreement in writing between the parties to dispense with or to limit standard disclosure.
[D] It is a list of documents on which a party relies and which adversely affects their own case, adversely affects another party’s case or supports another party’s case, or is required to be disclosed by a Practice Direction.
Answer:
[B] It sets out the extent of the search made and certifies an understanding of the duty to disclose documents and that the duty has been carried out to the best of the party’s knowledge.
Rationale:
[A] This is wrong and relates to the process of standard disclosure and follows CPR 31.10(2)
[B] This is the correct answer and follows CPR 31.10(5) and (6) and PD31A para 4.
[C] This is wrong and relates to CPR 31.5(1)(c).
[D] This is wrong and relates to the requirements on standard disclosure CPR 31.6.
Your client, Jesse, is the Defendant in proceedings. Zahara was previously a Defendant, but proceedings have now been discontinued against her. An expert’s report was disclosed by Zahara when she was defending the claim and contains evidence which is helpful to Jesse. Jesse wishes to rely on that evidence at trial.
What is the correct advice to give Jesse about the expert’s report disclosed by Zahara?
[A] Jesse is not entitled to use it as evidence at the trial.
[B] Jesse needs permission from Zahara to use it as evidence at the trial.
[C] Jesse needs permission from the court to use it as evidence at the trial.
[D] Jesse may use it as evidence at the trial without permission from Zahara or the court.
Answer:
[D] Jesse may use it as evidence at the trial without permission from Zahara or the court.
Rationale:
[A] is incorrect – see explanation for [D].
[B] is incorrect – see explanation for [D].
[C] is incorrect – see explanation for [D].
[D] is correct. CPR 35.11 provides that “Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial”. The commentary at para 35.11.1 of the White Book 2022 states “It is not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose, see “Gurney Consulting Engineers v Gleeds Health and Safety Ltd [2006] EWHC 43 (TCC), applied by Shepherd & Neame v EDF Energy Networks (SPN) Plc [2008] EWHC 123 TCC at paras 11-14.
Damages in the sum of £26,000 plus interest of £300 and an order for costs were awarded in Gloria’s favour. There was no suggestion or finding that the claim was fundamentally dishonest.
When dealing with costs, it was brought to the court’s attention that Derek had made a Part 36 offer, which was not accepted by Gloria and which was more advantageous than the sum awarded to Gloria at trial.
Derek was therefore awarded his costs plus interest on those costs. The costs order made in favour of Derek totals £28,000.
What is the correct advice to give as to the effect of the costs order made in favour of Derek?
[A] Derek will be able to enforce the costs order in his favour up to £26,300 without the permission of the court and any balance shall not be treated as an unsatisfied or outstanding judgment on the court record.
[B] Derek will be able to enforce the costs order in his favour up to £26,000 without the permission of the court and any balance shall be treated as an unsatisfied or outstanding judgment on the court record.
[C] Derek will be able to enforce the costs order in his favour of £28,000 in full without the permission of the court and therefore there is no balance to consider on the court record.
[D] Derek will be unable to enforce the costs order in his favour, unless he obtains the permission of the court, and this amount shall be treated as an unsatisfied or outstanding judgment.
Answer:
[A] Derek will be able to enforce the costs order in his favour up to £26,300 without the permission of the court and any balance shall not be treated as an unsatisfied or outstanding judgment on the court record.
Rationale:
[A] CPR 44.13 and 44.14(1) & (3). The claim is a fatal accident claim and therefore falls within CPR 44.13(1)(b) and (c) so qualified one-way costs shifting applies. The claim does not fall within any of the exceptions set out in CPR 44.15 or 44.16, so CPR 44.14(1) applies, which provides that the order for costs made in Derek’s favour (and against Gloria as the claimant here) may be enforced without the permission of the court, but only to the extent that the amount of that costs order (£28,000) does not exceed the amount ordered by the court to Gloria for damages and interest (totalling £26,300).
CPR 44.14(3) provides that any order for costs which is enforced only to the extent of the claimant’s damages and interest, shall NOT be treated as an unsatisfied or outstanding judgment for the purposes of the court record.
[B] This is incorrect. CPR 44.14(1) provides that the amount of interest awarded to the claimant can be considered as part of the aggregate amount of money which the defendant can enforce against, not just the amount of damages, and CPR 44.14(3) provides that any order for costs which is enforced only to the extent of the claimant’s damages and interest, shall NOT be treated as an unsatisfied or outstanding judgment for the purposes of the court record.
[C] This is incorrect. Derek will not be able to enforce his costs order in full under CPR 44.14(1) as the amount of the costs order in his favour exceeds the amount awarded to Gloria in damages and interest. There will be a balance that Derek is unable to enforce and in accordance with CPR 44.14(3) this shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.
[D] This is incorrect. Derek will be able to enforce the costs order made in his favour up to the amount of damages and interest awarded to Gloria without the permission of the court under CPR 44.14(1) and in accordance with CPR 44.14(3) any amount that cannot be enforced shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.
Martin’s solicitor telephones you to seek your advice as to how the court would be likely to respond to an attempt by Martin to avoid the agreement by issuing proceedings.
What is the correct advice to give Martin’s solicitor in response?
[A] The court would be required to give effect to the agreement. If Martin brings a claim in breach of the agreement, then the court will strike out the claim and Martin will require permission to bring a new claim if the expert determination does not resolve the dispute.
[B] The court would be required to give effect to the agreement. If Martin brings a claim in breach of the agreement, then the court will stay the claim until the conclusion of the expert determination process.
[C] There is a presumption in favour of the court exercising its discretion to strike out any claim brought by Martin in breach of the agreement. The burden would lie on Martin to show that there is a good reason for his claim not to be struck out.
[D] There is a presumption in favour of the court exercising its discretion to stay any claim brought by Martin in breach of the agreement. The burden would lie on Martin to show that there is a good reason for the stay not to be imposed.
Answer:
[D] There is a presumption in favour of the court exercising its discretion to stay any claim brought by Martin in breach of the agreement. The burden would lie on Martin to show that there is a good reason for the stay not to be imposed.
Rationale:
[A] is wrong. CPR 1.4(2)(e) and (f) requires the court to: encourage the parties to use ADR if the court considers that appropriate; and to help the parties to settle the whole or part of the case. However, the court is not required to give effect to the ED agreement. Para 1.4.9 of the WB 2023 commentary makes clear that there is a presumption in favour of granting a stay if a party acts in breach of such an agreement (as Martin is proposing to do here) but the presumption is rebuttable upon a party showing a good reason not to stay the claim. Moreover, the expert determination by its nature would resolve the dispute and, therefore, Martine would not need be able to bring proceedings.
[B] is wrong for the reasons given in [A] above.
[C] is wrong. This answer correctly identifies the presumption in relation to an attempt to defeat an ED clause, but incorrectly gives strike out of the claim as the likely remedy. The remedy according to paragraph 1.4.9 of the WB 2023 commentary is to stay the claim to give effect to the ED agreement.
[D] is correct. This answer correctly identifies the presumption, the remedy to be imposed and the burden on Martin if he wishes to avoid the stay. See White Book 2023 Volume 1 commentary at para 1.4.9.
In April 2023 Martin issued and served proceedings against Nicky.
In May 2023, Nicky filed a defence denying liability, claiming that the food supplement was inappropriate for the breed of sheep and, in addition, that Martin failed to introduce the food supplement into the ewes’ diet gradually in accordance with Grazier’s instructions.
In response to Nicky’s defence, Martin tells you that, when purchasing the food supplement, he took advice from Grazier, who had reassured him that the breed of sheep he owned was suited to the food supplement. Martin further tells you that he had followed Grazier’s advice as to how and when to introduce the supplement into the ewes’ diet.
It is now late May 2023.
In light of Nicky’s defence, you advise that Grazier should be joined to the proceedings.
What is the correct advice to give Martin as to how Grazier should be joined to the proceedings?
[A] Martin should apply to the court for permission to join Grazier as an additional party seeking a contribution or indemnity against the allegations raised by Nicky.
[B] Martin should apply to the court for permission to join Grazier as a second defendant.
[C] Martin should make a claim for contribution or indemnity and join Grazier as an additional party, for which neither permission nor consent is required.
[D] Martin should join Grazier as a second defendant; if Nicky consents to Grazier being joined to the proceedings, Martin does not require the court’s permission.
Answer:
[B] Martin should apply to the court for permission to join Grazier as a second defendant.
Rationale:
[A] is incorrect as that statement is wrong. Martin, as the claimant, would not be seeking to join in Grazier as an additional party seeking a contribution or indemnity against the allegations raised by Nicky. This is a misstatement of the rule under CPR 20.6 in which a defendant would seek to join in an additional party for contribution or indemnity against a person who is already a party to the proceedings. Martin is the claimant and Grazier has yet to be joined into the proceedings (CPR 20.6, 20.7 and 19.4).
[B] The fact pattern suggests that Martin has an actionable claim against both Nicky and Grazier so in order to protect his position he should bring proceedings against both. As proceedings have been served, permission of the court is needed to join Grazier in an additional party (second defendant) (CPR 19.4). B is therefore the best option for Martin as he takes the initiative in protecting his position in his claims against both Nicky and Grazier as either or both could be liable (CPR 20.6, 20.7 and 19.4).
[C] is incorrect as Martin is the claimant and cannot make a claim for contribution or indemnity against Grazier and in any event, they are not a party to the proceedings. The correct advice is to join Grazier as second defendant to the proceedings (CPR 20.6, 20.7 and 19.4).
[D] is incorrect as Martin requires the court’s permission: CPR 19.4(1).
In addition to his claim for the initial cost of the feed of £5,000, Martin has valued his loss of profit from the sale of the lambs, the ewes’ milk, and wool at £7,500. He incurred additional expenditure for replacement food at £4,000. Replacement of livestock is estimated at £1,500–£3,500 and veterinary bills at £6,000. Martin is aware that this food supplement is being widely used within the farming community and a number of sheep farmers have expressed concern about it and its continued use in the food chain.
The parties are at the stage of completing the Directions Questionnaires and attempt to agree directions. In respect of the claim and counterclaim:
* all three parties wish to call two lay witnesses each;
* all three parties agree to the instruction of a single joint veterinary expert (with permission to be given for oral evidence);
* Martin and Grazier each seek to instruct an expert in sheep nutrition (with permission to be given for oral evidence); and
* all three parties agree that it will take four hours to hear the evidence on the claim and a further five hours to hear the evidence on the counterclaim.
To which track is the case most likely to be allocated, and why?
[A] To the fast track; because of the value of the claim, the issues are straightforward, and the trial of the claim is not likely to last more than one day.
[B] To the fast track as the claim and counterclaim can be dealt with justly on that track given the value of the claim.
[C] To the multi-track as oral expert evidence in a fast-track trial is limited to a maximum of two experts.
[D] To the multi-track as, in all the circumstances and as the claim and counterclaim will be tried together, the court may not allocate it to the fast track.
Answer:
[D] To the multi-track as, in all the circumstances and as the claim and counterclaim will be tried together, the court may not allocate it to the fast track.
Rationale:
[A] is not the best answer. It is not necessarily the case that the claim will be under £25,000. It is possible that the claim will be straight forward but and the trial could take no longer than one day, but that is no means certain on the facts as we understand them (CPR 26.8).
[B] is not the best answer. It may not be allocated to the fast track – see PD26 9.1(3)(e) See full reasoning in [D].
[C] is not the best answer. Whilst it is possible, it is by no means certain that this matter will be allocated to the multi-track given the uncertainty of the potential value (CPR 26.6 & 26.8). CPR 26.6(5)(b).
[D] is the best answer. See PD26 para 9.1 (3)(a)(c) and (e): Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, as might be suggested to be the case here, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track. However, of relevance here is that PD26 para 9.1(3) (e) that where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track. Further, PD26 para 9.1 (3)(a) when it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard bearing in mind (c) that the possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track.
The experts’ reports are received and exchanged. Grazier’s sheep nutrition expert concludes that there is a small possibility that the supplement was unsuitable for Martin’s sheep. However, Martin’s sheep nutrition expert concludes that it is more than likely that the supplement was unsuitable for Martin’s sheep.
On 4 November 2023, Grazier, for reasons which are unexplained, serves a written notice of change of terms of the Part 36 offer to the sum of £8,000.
Martin is concerned about his liability for increasing costs.
It is now 12 November 2023.
Can Martin accept Grazier’s offer of £16,000 and, if so, how?
[A] Martin can accept the offer by making an application to the court seeking permission to do so, but he must make the application before 13 November 2023.
[B] Martin can serve notice of acceptance of the Part 36 offer before 13 November 2023, but he should be aware that Grazier may, within 7 days of Martin’s notice of acceptance, apply to the court for permission to change the terms of the offer.
[C] Martin cannot accept the offer, as the change of terms takes immediate effect from 4 November 2023.
[D] Martin can serve notice of acceptance of the Part 36 offer before 13 November 2023, but he should be aware that he must, within 7 days of serving notice of acceptance, apply to the court for the court to determine the costs liability for the proceedings.
Answer:
[B] Martin can serve notice of acceptance of the Part 36 offer before 13 November 2023, but he should be aware that Grazier may, within 7 days of Martin’s notice of acceptance, apply to the court for permission to change the terms of the offer.
Rationale:
[A] is not the correct advice. CPR 36.9 and 36.10 do not make provision for the offeree (Martin) to make an application to accept a Part 36 offer which has been withdrawn. It is for the offeror (Grazier) to apply to the court for permission to withdraw the offer if the offeree has served notice of acceptance within the relevant period (CPR 36.10(2)(b)).
[B] is the correct advice to give as it accurately reflects CPR 36.10(2)(b)(i) and (3). The fact pattern indicates that there has been a change of circumstance on receipt of uncertain and unhelpful expert reports leading to the likelihood that the court will grant permission to withdraw the offer.
[C] is not correct. The change of terms has effect on the expiry of the relevant period (CPR 36.10(2)(a)). Currently, Martin is still within the relevant period to accept and can seek to do so under CPR 36.10 (2)(b) but Grazier may apply to the court for permission to withdraw the offer if the offeree has served notice of acceptance within the relevant period (CPR 36.10(2)(b)).
[D] is not the correct advice. CPR 36.9 and 36.10 do not make provision for the offeree (Martin) to make an application to accept a Part 36 offer which has been withdrawn. It is for the offeror (Grazier) to apply to the court for permission to withdraw the offer if the offeree has served notice of acceptance within the relevant period (CPR 36.10(2)(b)).
Attempts to settle the claim are unsuccessful. Three weeks after service of the single joint veterinary expert’s report, Martin tells you that he is dissatisfied with the report as he considers that the veterinary expert has failed to take into account all the relevant evidence and failed to provide a clear opinion on liability.
Martin’s concerns go beyond points of clarification. Martin asks what action he can now take.
In the first instance, what is the correct advice to give Martin if he wishes to put questions to the single joint expert which go beyond points of clarification?
[A] Martin cannot put written questions to the single joint expert, but he should seek permission to obtain his own expert’s report.
[B] Martin should seek the other parties’ consent to put written questions to the single joint expert.
[C] Martin should put written questions to the single joint expert but can only do so with the court’s permission.
[D] Martin cannot put written questions to the single joint expert, and he should seek permission for the parties to jointly instruct a second expert.
Answer:
[B] Martin should seek the other parties’ consent to put written questions to the single joint expert.
Rationale:
[A] is incorrect as it is possible for Martin to put written questions to the expert although he requires the other parties’ consent - see reasoning in B.
[B] is correct. It is apparent from the fact pattern that Martin is within the deadline of 28 days to put written questions to the joint expert (CPR 35.6(2)(b)). However, it is also clear that his points go beyond clarification and therefore he needs the consent of the other side or that of the court (CPR 35.6(2)(c)). In the first instance, as required by the question, he should seek the other parties’ consent before making application to the court, if needs be.
[C] is incorrect as if Martin obtains the other parties’ agreement then he may put questions to the expert as provided for at CPR 35.6(2)(c).
[D] is incorrect as it is possible for Martin to put written questions to the expert although he requires the other parties’ consent - see reasoning in B.
A month before the trial is due to commence you are informed that one of Martin’s lay witnesses, his farm manager Roy, is unable to attend trial as he has been diagnosed with a serious illness for which he requires ongoing hospital treatment. A witness statement has been served containing Roy’s evidence in accordance with the case management directions. At this stage, Martin notifies the parties that Roy is unwell. Roy’s evidence is helpful, though not essential, as it only corroborates Martin’s evidence as to how he fed the food supplement to the ewes. Roy has said that he is willing to give evidence if he feels well enough.
What is the correct advice to give Martin as to how Roy’s evidence can still be used at trial if Roy is not well enough to attend the trial?
[A] Martin may give notice that he intends to rely on Roy’s statement as hearsay evidence on the grounds of Roy’s ill health. Martin should seek the agreement of the other parties to serve late notice, failing which an application may be made to the court.
[B] Given the requirement that facts to be proved at trial are by way of oral evidence given in public, Martin has no alternative but to summons Roy to attend court in order to rely on his evidence.
[C] Martin must arrange for Roy to give oral evidence via video link as his witness statement has been served.
[D] Martin should invite the court to allow Roy’s witness statement to stand as evidence in-chief as the witness statement has been served.
Answer:
[A] Martin may give notice that he intends to rely on Roy’s statement as hearsay evidence on the grounds of Roy’s ill health. Martin should seek the agreement of the other parties to serve late notice, failing which an application may be made to the court.
Rationale:
[A] is the correct answer as CPR 32.5, provides that if a party has served a witness statement, as is the case here, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence. The facts indicate that Roy is unable to attend trial due to ill health so cannot attend to give oral evidence. Martin can therefore rely upon CPR 32.5 and rely upon it as hearsay. This is further supported by the fact that the evidence is helpful but not essential. See the WB 2023 commentary at 32.5.3 which also refers to compliance with Pt 33 procedure. CPR 33.1 provides the definition of hearsay which applies here if Roy is unable to attend court to give evidence in person.
[B] is incorrect as if Roy is too unwell to attend trial to give evidence in person, Martin can rely upon Roy’s statement as hearsay evidence for the reasons given in relation to answer [A] above.
[C] is incorrect as, whilst Roy could give evidence by way of a video link if he is well enough, it is not correct to say that it is necessary for Roy to give oral evidence as his statement can be adduced by way of hearsay evidence for the reasons given above, and it is unlikely that his evidence would require cross examination.
[D] is incorrect as this statement misconstrues the rules on adducing evidence at trial under CPR 32.5(2). That rule states that where a witness is called to give oral evidence at trial, his witness statement shall stand as his evidence in chief unless the court orders otherwise. The fact pattern here indicates that Roy will be unable to give oral evidence and so his statement standing as evidence in chief is not applicable. The purpose of allowing a statement to stand as evidence in chief is not.
The matter proceeds to trial. Before the hearing commences, Martin expresses to you his worries about the outcome of the trial because he has cash-flow problems. The trial proceeds, and judgment is given in favour of both Martin and Nicky, with a finding that Grazier was entirely liable for the damage caused to the sheep by the supply of an unsuitable food supplement and Martin’s consequential losses. While critical of Nicky’s delayed diagnosis, the Judge did not consider that Nicky’s actions amounted to negligence.
What is the most likely costs order that the Judge will make?
[A] An order that Grazier pays Martin’s costs and that Grazier and Martin each pay 50% of Nicky’s costs.
[B] An order that Grazier pays Martin’s costs and that Martin pays Nicky’s costs.
[C] An order that Grazier pays Martin’s costs and for Nicky to pay her own costs.
[D] An order that Grazier pays Martin’s costs and for Grazier to pay Nicky’s costs directly to her.
Answer:
[D] An order that Grazier pays Martin’s costs and for Grazier to pay Nicky’s costs directly to her.
Rationale:
[A] is incorrect as there is no suggestion that Martin behaved unreasonably by suing Nicky as well as Grazier. The WB 2023 commentary at 44.2.28 (first six paragraphs) states that where a claimant cannot establish which defendant was at fault it is reasonable for him to sue both. Martin should therefore not be penalised in costs for making this decision.
[B] is incorrect for the same reasons as [A] above.
[C] is incorrect as, despite the judge’s apparent criticism of Nicky, she was still found not liable and should therefore not be penalised in costs. There is no suggestion she behaved unreasonably or in such a way as to merit an order that she bear her own costs (CPR 44.2).
[D] The correct order to ask for in these circumstances is a Sanderson order which is described here. Grazier is the unsuccessful defendant. Nicky is the successful defendant. Martin is the unsuccessful claimant against Nicky and the successful claimant against Grazier. A strict application of the general costs rule would require that Martin should pay Nicky’s costs and that Grazier should pay Martin’s costs but the court’s discretion as to whether costs are payable by one party to another under CPR 44.2(1)(a) is wide enough to enable it to order that the unsuccessful defendant, here, Grazier, should pay Nicky’s costs directly. There is an indication in the fact pattern that Martin’s financial position is precarious and so it would afford greater protection to both Martin and Nicky if the costs were paid directly to Nicky by Grazier (see WB 2023 commentary at 44.2.28 (first six paragraphs)).
On 10 January 2023, the claim was issued in the County Court with a statement of value of £40,000 to £45,000.
On 10 March 2023, the claim was served, along with the particulars of claim.
On 31 March 2023, Paula filed a defence denying liability for the accident and stating that Frank crossed the junction while a red light was showing against him. She also raises issues with Frank’s symptoms, saying that his medical records do not support his current reporting of his cognitive symptoms.
The court has provisionally allocated the case to the multi-track and sent Directions Questionnaires to both parties. Frank’s solicitors seek your advice about cost budgeting.
Unless the court orders otherwise, what is the correct procedure for Frank’s solicitors to adopt in relation to filing and exchanging Frank’s costs budget in this case?
Frank’s solicitors should
[A] at least 21 days before the first case management conference, file and exchange a full costs budget using the complete Precedent H form.
[B] at least 21 days before the first case management conference, file and exchange only the front page of the Precedent H form.
[C] file and exchange a full costs budget using the complete Precedent H form with Frank’s Directions Questionnaire.
[D] file and exchange only the front page of the Precedent H form with Frank’s Directions Questionnaire.
Answer:
[D] file and exchange only the front page of the Precedent H form with Frank’s Directions Questionnaire.
Rationale:
[A] is incorrect – see explanation for [D].
[B] is incorrect – see explanation for [D].
[C] is incorrect – see explanation for [D].
[D] Correct. As the claim is currently limited to £50,000, Frank’s solicitors must file his costs budget with his directions questionnaire (see CPR 3.13(1)(a)) using only the front page of Precedent H (see Practice Direction 3E paragraph3). See Practice Direction paragraphs 3-5. (3 through to 5)
On that report, the police have written:
“Scooter went through green light.”
Alongside this sentence, Frank has written:
“Did I? Make sure of this.”
Frank explained to his solicitors that he wrote this comment as his own personal reminder when he first received a copy of the report because initially he could not remember exactly how the accident happened. He has never shown the amended report to anyone else, but the original of the document (without Frank’s comment) was disclosed to Paula as part of the pre-action correspondence.
Frank’s solicitors are not sure whether the amended report needs to be disclosed or not, so they ask for your advice.
Does Frank’s amended report need to be disclosed, and why?
[A] No, because the amended report is privileged.
[B] Yes, because Frank has marked the amended report and it is a document which adversely affects his own case.
[C] No, because it has already been disclosed.
[D] Yes, because any previously disclosed document which has been marked in any way must be disclosed.
Answer:
[B] Yes, because Frank has marked the amended report and it is a document which adversely affects his own case.
Rationale:
[A] Wrong. On the facts here, no privilege attaches to this document. It is not legal advice, it was not created with a view to litigation etc. see White Book 2023 commentary at 31.3.6, 31.3.8, and 31.3.11. In any event, the original police accident report has already been disclosed as part of pre-action disclosure, thus even if litigation privilege did attach, it has already been waived.
[B] Correct. As Frank has written on the document and it could support Paula’s case, it is a copy of a document which contains a “modification, obliteration, or other marking or feature” and is therefore treated as a separate, disclosable, document. See CPR 31.9 which provides that a copy of a document that contains a modification or marking on which a party intends to rely or which adversely affects his own case or another party’s case or supports another party’s case shall be treated as a separate document.
[C] Wrong. See correct answer. This is not an exact copy and therefore needs disclosing.
[D] Wrong. See correct answer. Not every marked or modified document must be disclosed, but only those on which the disclosing party intends to rely or which adversely affects or supports the case of another party. See CPR 31.9.
Frank’s solicitors follow your advice and act accordingly.
On receipt of Paula’s disclosure list, Frank is surprised not to see dashcam footage from her vehicle among the disclosed documents. He says that it is recorded in the police report that Paula mentioned having a dashcam in her car.
Paula’s solicitors have ignored requests for disclosure of any dashcam footage and have not confirmed whether it exists or not.
Frank’s solicitors ask for your advice as to how they should go about obtaining disclosure of any dashcam footage.
What is the best advice to give Frank’s solicitors about how to obtain disclosure of any dashcam footage?
Frank’s solicitors should
[A] file an application with the court for specific disclosure, putting Paula’s solicitors on notice of the application, and serve it as soon as practicable thereafter.
[B] file an application with the court for specific disclosure, putting Paula’s solicitors on notice, but serve the application on Paula’s solicitors a day before the hearing of the application.
[C] file an application with the court, without notice to Paula, for specific disclosure, and serve it as soon as practicable after the hearing.
[D] file a without-notice application for specific disclosure with the court, but wait to serve it until at least 3 days before the court is to deal with the application.
Answer:
[A] file an application with the court for specific disclosure, putting Paula’s solicitors on notice of the application, and serve it as soon as practicable thereafter.
Rationale:
[A] This is the best advice. At the moment, there is no good reason for the application to be without notice. The court can order specific disclosure (see CPR 31.12 SA14) and applications may be without notice, but it must be permitted by a rule, practice direction, or order (see CPR 23.4), equally service must be made of the application as soon as practicable (CPR 23.7(1)(a))
[B] This is not the best advice you could give. Service of the application notice must be made “as soon as practicable” after filing (see CPR 23.7(1)(a)), whilst the court can treat a shorter period as sufficient notice (CPR 23.7(4)), you do not need to run the risk of the court rejecting that argument.
[C] This is not the best advice you could give. See the correct answer for reference to why this is not best made without notice.
[D] This is not the best advice you could give. Whilst service of the application should be made (unless another rule or practice direction specifies) at least 3 days before the application hearing, there is no good reason not to serve it as soon as practicable after filing it. There is no good reason for it to be without notice. By waiting, time will have passed and therefore logically the application cannot be said to have been served as soon as practicable.
As a result of that joint statement, Frank’s solicitors successfully apply to amend the statement of value to “up to £200,000”, including ongoing claims for care and assistance from Frank’s wife, and some loss of earnings later in life.
Frank’s instructions are that he wants to attempt to settle the case now but does not want to give Paula’s solicitors long to think about it. He wants to put some pressure on Paula to accept whatever offer is made and is keen to ensure that he can recover the costs which he has reasonably and proportionately incurred. He instructs his solicitors to make an offer of £150,000.
Frank’s solicitors estimate their costs at around £75,000 to date.
What is the best advice to give Frank’s solicitors to ensure that any settlement reached reflects Frank’s instructions?
Frank’s solicitors should make a
[A] Calderbank offer for £150,000, open for 7 days, with costs to be assessed if not agreed upon acceptance.
[B] Part 36 offer for £225,000, inclusive of costs, open for acceptance within 21 days.
[C] Part 36 offer for £150,000, open for acceptance within 21 days, stating that, after that time, it will be automatically withdrawn.
[D] Part 36 offer for £150,000, open for acceptance within 14 days, stating that, after that time, it will be automatically withdrawn.
Answer:
[C] Part 36 offer for £150,000, open for acceptance within 21 days, stating that, after that time, it will be automatically withdrawn.
Rationale:
[A] This is not the best advice you can give. The best way to ensure that Frank is able to recover his entitlement to costs is to settle by way of Part 36, which has strict rules about costs. Calderbank offers do not come with that same security and leave interpretation of the offer open to challenge (see Part 36 generally and Calderbank)
[B] This is not the best advice you can give. A part 36 offer cannot be expressed in terms inclusive of costs, given that the rules specify exactly what the costs consequences of acceptance must be in order for it to be a valid Part 36 offer. This will stand only as a Calderbank offer. This also does not provide for withdrawal of the offer, and it will remain open for acceptance unless withdrawn. (see CPR 36.2(2) and 36.5). It would also be contrary to the client’s instructions.
[C] This is the best advice you can give. To ensure the fullest recovery of costs possible for Frank, the offer should be in Part 36 form. Part 36 allows for offers which are automatically withdrawn after a certain time, which puts pressure on Paula to accept it, however they must still be open for a minimum period of 21 days in order to be valid Part 36 offers (see CPR 36.9(4)(b)) and CPR 36.5(1)(c).
[D] This is not the best advice you can give, a Part 36 offer must be open for acceptance for 21 days.
Upon receipt of the admission, Frank’s solicitors write to Paula’s requesting an interim payment of £5,000 to cover the cost of paying privately for the specialist cognitive rehabilitation treatment which Frank is still waiting for.
The NHS waiting list for this treatment is long and Frank does not expect to receive free NHS treatment for some time.
Paula’s solicitors refuse the request, saying that they do not believe that Frank needs the treatment, and that they will obtain their own expert evidence on the issue.
Frank’s solicitors are not sure whether they are able to apply for an interim payment in this case and so ask for your advice.
Can Frank apply at this stage for an interim payment, and why?
[A] No, because Paula has not admitted that she will have to pay a substantial amount of money to Frank, only that she is liable to pay damages, which have yet to be assessed.
[B] Yes, because the court will give judgment against Paula for damages to be assessed.
[C] No, because the issue as to whether Frank needs the treatment is not settled and the court cannot be satisfied that Frank will use any interim payment for that treatment.
[D] Yes, because Paula has admitted liability to pay damages and the sum requested is a reasonable proportion of the likely amount of the final judgment.
Answer:
[D] Yes, because Paula has admitted liability to pay damages and the sum requested is a reasonable proportion of the likely amount of the final judgment.
Rationale:
[A] Wrong. The rules only require that the defendant has admitted liability to pay damages to the claimant (CPR 25.7(1)(a)). It is a part of the decision of the court that the sum must be no more than a reasonable proportion of the likely judgment (CPR 25.7(4)), that is not something that the Defendant has to admit.
[B] Wrong. That is the wrong condition and comes from CPR 25.7(1)(b). Whilst in this case Frank may obtain judgment for damages to be assessed, he has not yet done so.
[C] Wrong. There is nothing in the rules which says that the Claimant must show what they will spend the money on, the test is only that the sum is a reasonable proportion of the total likely judgment.
[D] Correct. Frank has an admission from Paula to pay some money. This is a claim currently pleaded at £40,000 - £45,000 and Frank has sustained serious injuries. The court can grant an interim payment where an admission has been made to pay damages and that the sum asked for is a reasonable proportion of the likely amount of the final judgment (CPR 25.7).
Amir wishes to bring a claim for damages for personal injury. Your instructing solicitors have complied with the relevant pre-action protocol on Amir’s behalf. Sunrise has denied liability on the grounds that it took all reasonable care to ensure the floor was clear of spillages of liquid and other hazards. It is Sunrise’s defence that there was a reporting system in place for hazards and, in any event, the cleaning of the floors was the responsibility of Able Limited (“Able”), a cleaning company subcontracted by Sunrise. Negotiations have not resulted in a settlement agreement and your instructing solicitors have advised that the next step is for Amir to issue proceedings.
It is now 4 September 2023. You are asked to advise Amir on limitation.
What is the correct advice to give Amir as to the month and year in which the limitation period will expire in his case?
The limitation period will expire in
[A] October 2023.
[B] November 2023.
[C] June 2024.
[D] October 2026.
Answer:
[D] October 2026.
Rationale:
[A] is incorrect. This date marks the month in which Amir turns 18. Section 28 makes clear that Amir has 3 years from the date of his 18th birthday (when he ceases to be under a disability for the purposes of limitation) to bring his claim.
[B] is incorrect. This date is 3 years from the accident and, if there were no issue as to knowledge, would mark the end of the limitation period if Amir had been an adult at the date of the accident. Amir was under a disability at the time of the accident and so s.28 needs to be applied which displaces s.11.
[C] is incorrect. This date is 3 years after Amir acquired the necessary knowledge to bring a claim, i.e. that his latest neuro symptoms were attributable to the accident in 2020. However, he was still under a disability at this time and so the s.28 provisions continue to apply.
[D] is correct. This date is 3 years after Amir’s 18th birthday. This is the correct answer in accordance with s.11 and s.28 LA 1980. This is a claim for personal injury so s.11 LA 1980 applies. Under s.11 the applicable period is three years from the date of the accident or the date of knowledge (if later). In the circumstances of Amir’s accident, it would be three years from the date of the accident, which would ordinarily mean that limitation would expire on 15th November 2023. However, Amir was 15 years old when the accident occurred. He was therefore under a disability as defined by s.38(2) LA 1980. As such, the provisions under s.28(1) and s28(6) apply. Those rules provide that a claim may be brought at any time before the expiration of three years from the date a claimant ceased to be under a disability notwithstanding that the period of limitation has expired. Amir ceases to be under a disability on his 18th birthday on 2 October 2023
s.11 LA 1980, s.28, s.38(2) LA 1980
Frank calls his solicitors and says that, due to completely unrelated reasons, his relationship with his wife, Sherry, has broken down and that she will no longer be willing to attend court to give evidence on his behalf, which had been focused on his claim for care and assistance including the notional cost of her looking after him. This aspect of the claim is pleaded at £40,000.
Frank’s solicitors have a signed and dated witness statement from Sherry, which has already been served on Paula, but are conscious that, without Sherry’s attendance, the Judge will attach little or no weight to Sherry’s evidence.
They ask for your advice as to how best to ensure that Sherry’s evidence is given the most weight.
What is the correct advice to give as to what Frank’s solicitors should do to ensure that Sherry’s evidence is given the most weight possible in the circumstances?
Frank’s solicitors
[A] do not need to do anything as there is no restriction on hearsay evidence in civil proceedings.
[B] should inform Paula as soon as possible that Sherry is not being called to give oral evidence, and give the reasons why.
[C] should file a witness summary as soon as reasonably practicable with the court.
[D] should make an application to the court for permission to cross-examine Sherry as a hostile witness.
Answer:
[B] should inform Paula as soon as possible that Sherry is not being called to give oral evidence, and give the reasons why.
Rationale:
[A] Wrong. Whilst hearsay evidence is not excludable as a matter of evidence, the weight attached to it will be less if nothing is done. See correct answer.
[B] Correct. The court could receive hearsay evidence without the requisite notice, but it will adversely affect the weight which can be attached to that evidence if a notice isn’t served. A party must put the evidence in as hearsay if they want to rely on it (see Civil Evidence Act 1995 Sections 1-4, and section 2(4)(a) CEA 1995 in particular; CPR 32.5; and WB 2022 commentary at 32.5.3) See CPR 3.1(2)(a) The Court’s General Powers of Management, SA13. Even though ordinarily the notice would be given at the same time as serving the witness statement, the court can exercise its discretion to that rule. See also CPR 32.1.
[C] Wrong. A witness summary is for use instead of a witness statement or where one can’t be obtained. Here you already have a statement which has been signed and served.
[D] Wrong. This provision does not apply to hearings which are a trial, does not affect the weight that will be given to the statement, which is necessarily hearsay evidence, and does not guarantee Sherry’s attendance in any event. This is taken from CPR 32.7, SA19.
The correct steps are taken by Frank’s solicitors in relation to Sherry’s evidence.
One week before trial, following a period of negotiation between the parties, Frank’s solicitors receive a last-minute Part 36 offer from Paula’s solicitors in the sum of £120,000.
Frank wishes to accept the offer, and his solicitors confirm acceptance with Paula’s solicitors. The parties write to the court informing the court that the matter has settled and that the parties are currently attempting to agree costs.
The court acknowledges the notification that the parties have settled and vacates the trial, asking the parties to update the court when negotiations on costs are completed.
It takes two weeks for the parties to agree the costs Paula will pay Frank.
Frank’s solicitors seek advice as to what they should do to record the settlement reached between the parties.
What is the best advice to give Frank’s solicitors in response?
They should
[A] write to the court setting out the terms of the agreement; the court will then draft the order and send it out to the parties.
[B] draw up a Tomlin order, send it to Paula’s solicitors to sign, and then file it with the court.
[C] draw up a consent order, send it to Paula’s solicitors to sign, and then file it with the court.
[D] draw up a consent order, send it to Paula’s solicitors to sign, and then file three copies of it with the court.
Answer:
[D] draw up a consent order, send it to Paula’s solicitors to sign, and then file three copies of it with the court.
Rationale:
[A] This is not the best advice you can give. The order will need to be drawn up by the parties as it is a consent order (see correct answer for references)
[B] This is not the best advice you can give. A Tomlin order is unnecessary here because there are no terms of the settlement which need to be kept confidential. In any event the procedural element is incorrect because the rule requires that three copies should be filed with the court in these circumstances see explanation at [D] for details. See commentary at paragraph 40.6.2 in the 2022 White Book. “A Tomlin order is not necessary where…….”
[C] This is not the best advice you can give. You must file enough copies of the order with the court so that it can retain one and serve the others on all parties.
[D] This is the best advice you can give. Consent orders will be drawn up by the parties (CPR 40.3(1)(d)), must contain enough copies to be served on everyone and one to be retained at court (CPR 40.4(1)(a)), and must be signed by all parties to the agreement (CPR 40.6(7)(c)). Please also see CPR 36.14(7), regarding non-payment and judgment.
Amir’s solicitor issues the claim on 9 October 2023 and notifies the court that her firm intends to serve the claim form on Sunrise itself. Damages are expected to be in the region of £20,000. A few days later, Amir’s solicitor begins maternity leave. Amir’s file is handed over to Paul, a more junior solicitor in the firm’s PI department. On 7 December 2023, Paul realises that Amir’s claim form remains to be served on Sunrise. Paul telephones Amir to explain the situation and apologise. Amir, who is angry about the oversight, tells Paul he wants the claim dealt with without delay from this point onwards.
Paul immediately instructs you to draft the particulars of claim and return them to him as soon as possible so they can be served with the claim form. You explain to Paul that you are currently in a trial and the earliest you will be able to complete the particulars of claim is 14 December.
Assuming that no application is made to the court, what is the latest date by which the particulars of claim must be served on Sunrise?
The particulars of claim must be served on Sunrise by midnight on
[A] 9 January 2024.
[B] 23 January 2024.
[C] 9 February 2024.
[D] 23 February 2024.
Answer:
[C] 9 February 2024.
Rationale:
[A] is wrong. Amir has 4 months to serve his claim form on Sunrise (CPR 7.5(1)). This date is only 3 months from the date of issue. In any event he has 14 days after the service of the claim form to serve the particulars of claim provided they are served no later than the latest time for serving the claim form (CPR 7.4(2)). In this case that date is 9 February 2024.
[B] is wrong. This is not the latest date available for serving the particulars of claim for the reasons given in [A] above.
[C] is correct. The claim form must be served by 9 February and the particulars of claim cannot be served later than the last date for service of the claim form. CPR 7.4(2)
[D] is wrong Amir cannot serve the particulars of claim after the last date for serving the claim form.
CPR 7.4(2) and CPR 7.5(1)
In view of Amir’s concerns about unnecessary delays, what is the best advice to give to his solicitors as to how to respond to Sunrise’s request for an extension of time for service of the defence?
Amir’s solicitors should be advised to
[A] agree to the extension of time for service of the defence. The extension requested is not unreasonable and a refusal to agree could increase costs unnecessarily by forcing Sunrise to issue an application to the court seeking an order for the extension it seeks.
[B] refuse to agree an extension of time for service of the defence on the grounds that the lack of evidence preventing Sunrise from bringing an additional claim against Able will not prevent Sunrise from filing and serving a defence in the main action.
[C] inform Sunrise that if it wishes to obtain an extension of time for service of the defence then Sunrise must issue an application to the court for an order for this extension to be granted, which Amir will not oppose.
[D] refuse to agree an extension of time for service of the defence as, if Sunrise then fails to file and serve the defence in time, Amir can apply for judgment in default.
Answer:
[A] agree to the extension of time for service of the defence. The extension requested is not unreasonable and a refusal to agree could increase costs unnecessarily by forcing Sunrise to issue an application to the court seeking an order for the extension it seeks.
Rationale:
[A] The best advice here would be to agree to the extension of time for service of the defence. The extension requested is not unreasonable and a refusal to do so could increase costs unnecessarily by forcing Sunrise Hotel to issue an application to the court seeking an order for the extension they seek.
This is the best advice as it operates within the rules permitting the parties to agree an extension of time for service of the defence of up to 28 days under CPR 15.5. The defendants have acknowledged service within the required time CPR 10.3 and are seeking an extension before the time required to serve the defence (CPR 15.4). The parties can agree an extension pursuant to CPR 15.5. The time requested is the maximum permitted under the rules (28 days) but is still within the time allowed for the parties to agree by consent.
The reasons given for seeking the extension appear reasonable in the circumstances. Amir was on notice from the pre-action communications that Sunrise was seeking to blame Able and it would be quicker and cheaper for Sunrise to seek to add Able as an additional party at the same time as filing its defence. It is therefore likely that a court would allow the extension if the defendant was forced to seek such an order. Amir is therefore best advised to agree this extension to avoid unnecessary costs being incurred by the defendant who would be likely to issue an application if their request were refused.
[B] is not the best advice as, whilst Sunrise could file and serve a defence within the requisite time period without including a claim against Able, and could seek to join Able in at a later date thereby avoiding the need for the extension sought, this would increase costs unnecessarily as they would need to seek the court’s permission to include Able as an additional party after filing their defence (CPR 20.7(3)(b) – SA9 – multiple causes of action, counterclaims and other additional claims).
[C] is not the best advice as requiring the defendant to issue an application when there are no reasonable grounds to refuse will increase costs unnecessarily. The rules allow the parties to agree to an extension under CPR 15.5.
[D] is not the best advice as, whilst Amir could proceed on that basis (CPR 15.3), this is an uncertain step for Amir to take as it is highly unlikely that Sunrise will fail to file a defence as they are aware of the deadline and are taking steps to comply with the rules by seeking an extension pursuant to CPR 15.5.
CPR10.3, CPR 15.3, CPR 15.4, CPR 15.5, CPR 20.7(3)(b)
What is the best advice to give Amir’s solicitors as to what, if any, steps should be taken to obtain copies of the accident book and health and safety reports, and why?
Amir’s solicitors should
[A] take no further action to obtain these documents as to do so would incur unnecessary costs. Any application for an order for disclosure and inspection is unlikely to succeed as the court is likely to agree that disclosure of the accident book is disproportionate and that any health and safety reports are privileged.
[B] write to those acting for Sunrise repeating the request for disclosure of these documents on the grounds that they should have been made available during the pre-action disclosure stage. Sunrise’s failure to provide these documents at an earlier stage in the proceedings will be brought to the attention of the court when considering costs at the conclusion of the case.
[C] issue an application seeking specific disclosure of accident book entries relating only to accidents involving slipping in the hotel premises for the three years preceding Amir’s accident. Specific disclosure should also be sought of any health and safety reports as inspection may be allowed if the dominant purpose of the reports was to advise the hotel generally on cleaning procedures rather than seeking legal advice.
[D] issue an application for specific disclosure of all Sunrise’s accident book entries together with those health and safety reports related to the accident. Such evidence is clearly relevant to the issues; these are documents on which Amir would wish to rely which might adversely affect his own case, adversely affect or support Sunrise’s case.
Answer:
[C] issue an application seeking specific disclosure of accident book entries relating only to accidents involving slipping in the hotel premises for the three years preceding Amir’s accident. Specific disclosure should also be sought of any health and safety reports as inspection may be allowed if the dominant purpose of the reports was to advise the hotel generally on cleaning procedures rather than seeking legal advice.
Rationale:
[A] is not the best advice as there are further steps Amir could and should take to try to obtain these documents, the most effective being to make an application for specific disclosure pursuant to CPR 31.12.
[B] is not the best advice as Amir’s solicitors have already tried and failed to obtain these documents through a written request and so it is unlikely that they will get a positive response on the second time of asking. It may be correct to say that these documents should have been made available during the pre-action protocol stage, and the court may take this into account when considering costs, but that approach is unlikely to yield the results which could be achieved by issuing an application for specific disclosure.
[C] The best advice to give is that Amir’s solicitors should issue an application seeking specific disclosure of accident book entries relating only to accidents involving slipping in the hotel premises. Specific disclosure should also be sought for any health and safety reports but inspection will only be allowed if the dominant purpose was to advise the hotel generally on cleaning procedures rather than seeking legal advice.
Sunrise must comply with standard disclosure pursuant to CPR 31.6. The accident book and related health and safety reports come within that definition. Where a party fails to disclose documents, the court may make an order for specific disclosure under CPR 31.12. When making the order the court will take into account all the circumstances of the case and will need to satisfy itself as to the relevance of the documents sought. The court will have regard to the pleadings and issues in dispute (see the WB 2022 commentary at 31.12.2. It is apparent that the evidence of previous similar accidents is relevant to the issues and it is therefore likely the court will consider the accident book should be disclosed, but not in its entirety as that is likely to be disproportionate (WB 2022 commentary at 31.3.4).
Amir should seek disclosure of any health and safety reports. It is implicit from the fact pattern that the health and safety reports were prepared at the time of Amir’s accident and so the first part of the test for privilege, that litigation was contemplated or pending at the time the health and safety reports were sought, is satisfied. However, Amir needs to be warned that inspection may be prevented on the grounds of litigation privilege if the dominant purpose of the report was for receiving legal advice in existing or contemplated proceedings (see the WB 2022 commentary at 31.3.9).
[D] is not the best advice as, whilst it is recommended that Amir make an application for specific disclosure, and the documents sought appear to come within standard disclosure under CPR 31.6, the effectiveness of his application may well be undermined if he seeks disclosure of the full accident book as the court may well consider that to be disproportionate (WB 2022 commentary at 31.3.4). The court may also view any health and safety reports as privileged for the reasons given above (and see the WB 2022 commentary at 31.3.9).
What is the best advice to give Amir’s solicitors as to the factors that the court is likely to consider when determining the application?
In considering Amir’s application, the court will have regard to
[A] the overriding objective; the need to strike a balance between injustice to Amir if it refuses the application and injustice to Able and other litigants in general if it grants the application; and it may consider whether Amir’s amended claim has some prospects of success.
[B] the overriding objective; the need to strike a balance between injustice to Amir if it refuses the application and injustice to Able and other litigants in general if it grants the application; and why justice to Amir, Able, Sunrise and other court users requires Amir to be able to amend his case.
[C] whether Amir has provided a good explanation as to why the application is necessary; whether his amended case is strong; and why justice to Amir, Able, Sunrise and other court users requires Amir to be able to amend his case.
[D] whether the amendment of Amir’s particulars of claim is necessary because he would be unable to properly continue his claim against Able unless the amendment were made.
[A] the overriding objective; the need to strike a balance between injustice to Amir if it refuses the application and injustice to Able and other litigants in general if it grants the application; and it may consider whether Amir’s amended claim has some prospects of success.
Rationale:
[A] is the best advice. This approach correctly summarises the first paragraph of the commentary at WB 2022 commentary at 17.3.5 and is therefore the best advice to give Amir in this case.
[B] is not the best advice. This distractor combines the first two factors to be taken into account by the court as per the commentary at WB 2022 commentary at 17.3.5 but omits the last (some prospects of success) and includes the final factor to be taken into account when the court is considering a very late application (see explanation for [C] below) see WB 2022 commentary at 17.3.8
[C] is not the best advice. These are the hurdles for an applicant to meet when making a very late application to amend which will cause the trial date to be lost. The fact pattern makes clear that no case management decisions have yet been made, thus there is no prospect of a trial date being lost. see WB 2022 commentary at 17.3.8
[D] is not the best advice. This is the test for adding or substituting a party after the expiry of the limitation period and has no application in this case.
