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Flashcards in SG7 Deck (32):
1

QUESTION 1
You have been instructed on behalf of Fielding Entertainments Ltd, which is being sued by KM Advertising Ltd for damages for breach of contract. The particulars of claim contains the following passages:
2. It was agreed between the parties that the Claimant would provide certain advertis¬ing services to the Defendant for the sum of £23,500.. . .
5. In the circumstances the Claimant is entitled to the sum of £23,500.

PARTICULARS

Invoice 498457 £11,750
Invoice 498462 £ 4,700
Invoice 498468 £ 7,050

Assume that none of the details given above are defined with any greater precision else-where in the particulars of claim. Advise Fielding Entertainments Ltd on the form of any requests for further information that may be made.

Answer to RFI
Where a traditional RFI is used, the second party will use the RFI itself (which should have been attached to the email) as the basis of the response. PD 18, para 2.3(1) provides:
Unless the Request is in the format described in paragraph 1.6(2) and the second party uses the document supplied for the purpose, a response must:
(a) be headed with the name of the court and the title and number of the claim,
(b) in its heading identify itself as a response to that Request,
(c) repeat the text of each separate paragraph of the Request and set out under each paragraph the response to it,
(d) refer to and have attached to it a copy of any document not already in the possession of the first party which forms part of the response.

A response to the above RFI would look like the following:
(See SG 7)

2

Strike out quiz:
Which of the following could be struck out under r.3.4(2) and why?
(You may find it useful to glance at Snowden J’s November 2015 judgment in Moosun v HSBC [2015] EWHC 3308 (Ch))


(i) A Defence in a road traffic case which admits the facts of the accident, denies that the defendant was negligent and gives as the reason:
The Claimant is a female driver, the Defendant male and it is a well-known fact that all women are worse drivers than men.

(ii) A Particulars of Claim brought in the name of a child, without a litigation friend (when no order has been made permitting them to bring the proceedings).

(iii) A Particulars of Claim brought in the name of a dog.

(iv) The paragraphs in a Particulars of Claim claiming damages for loss of enjoyment and distress due to lost luggage, in a claim against a travel company in respect of a holiday.
(v) A Defence to a claim for unpaid salary which denies that the Claimant is entitled to unpaid salary because:
(a) The Claimant has now left the employment of the Defendant and only current employees are entitled to receive salary; and
(b) The Claimant did not eat breakfast before coming to work and the Defendant company promotes the importance of its employees eating breakfast.

vi) A claim form claiming simply “Money owed, £36,000”.

(i)
• Yes
• Under r 3.4(2)(a) and PD3A para 1.6
• As the reason advanced is incoherent and/or does not amount to a defence in law
• And so the Defence amounts to a bare denial
• And thus discloses no reasonable grounds for defending the claim

(ii)
• Yes
• Under r3.4(2)(c)
• Breach of r 21.2
• See: Moosun v HSBC etc [2015] paras [8] and [9], posted on Moodle in the pre-session folder for the students

(iii)
• Yes
• A dog is not a person under r 2.3(1)!
• And cannot bring proceedings
• Snowden J in Moosun v HSBC etc [10]

(iv)
• No
• This is a properly sustainable claim
• In this type of case
• (eg Jarvis v Swan Tours)


(v)
• Yes
• Under r 3.4(2)(a) and PD3A para 1.6
• As the reasons advanced are incoherent
• and/or do not amount to a defence in law
• And thus discloses no reasonable grounds for defending the claim


(vi)
• Yes
• r 3.4(2)(a) and PD3A para 1.4
• as the claim form sets out no facts
• indicating what the claim is about
• And thus discloses no reasonable grounds for bringing the claim

3

You have been instructed by solicitors who act on behalf of Mabel Jones, who fell last April on a raised paving slab caused by a tree root and broke her hip. The Particulars of Claim were served in December 2015, stating that the incident occurred in Howland Close. However, it has come to light that Mabel was confused as to the name of the road, she has now confirmed that the raised paving slab was in Tavistock Street, not Howland Close. The error came to light when the Defendant, Oakhurst District Council, filed a Defence querying the location. In correspondence the Council has said it inspected the site and searched its inspection records for Howland Close, noting that Howland Close is not tree lined.

Your Instructing Solicitors have asked you how they should go about seeking to amend the Particulars of Claim. Their view is that the Claimant is only mistaken about the name of the road (an understandable mistake as in fact the name of the road changes from Howland Close to Tavistock Street as the road crosses an intersecting road) and that there is no doubt regarding the actual location of the fall.

Answer the following questions:

(a) Advise whether permission will be needed to amend the Particulars of Claim in this case – explain your reasoning. [1 mark]

(a) Permission of the court / consent of the Defendant will be required [0.5 mark] as the Particulars of Claim have been served. [0.5 mark]
[1 mark maximum]

Comments:
 I mark
 But you are asked 2 things = must make at least 2 points
 Including a reason
 r 17.1

4

(b) Set out the general principles that govern cases where permission to amend is required and how they are likely to be applied in this case. [3 marks]


Comments:
 I mark
 But you are asked 2 things = must make at least 2 points
 Including a reason
 r 17.1

(b) The Court asked to grant permission to amend will base its decision on:

(i) The overriding objective and amendment should be allowed where this is just and proportionate (both elements are required for the mark) [1 mark]
(ii) Amendments ought to be allowed which ensure that the real dispute between the parties will be adjudicated upon [0.5 mark]
(iii) Permission to amend will be refused if it has no real prospects of success
[0.5 mark]
Here:
(iv) In this case the amendment will clarify the circumstances of the accident
[0.5 mark]
(v) And it is sensible to have the correct information before the court/there is no issue about the merits of the amendment [0.5 mark]
(vi) Any prejudice to the Defendant can be compensated in costs [0.5 mark]
(vii) Accordingly, in the unlikely event that the Defendant does not consent to the amendment the Court is likely give permission to amend (allow 0.5 mark for “probably” or “will”. Nothing for “unlikely” or “will not”). [0.5 mark]
[3 marks maximum]


Comments:
 Note 3 marks
 And 2 obvious aspects being asked
 Although ‘the overriding objective’ is often an answer, it is good also to include some of its elements, just and proportionate, being the obvious ones; it may well be that overriding objective is not enough on its own.
 You must apply the test to the facts here; think about how to do this concisely and clearly and pick the most important aspects of the arguments you would use in court. These are more likely to be on the marking scheme
 Also, start with the basic/big picture points first: here that the amendment gets the proper details before the court and that the usual form of compensation is in costs
 Give a clear view on what will happen here; ie whether she will get permission

5

(c) What is the likely cost consequence to Mabel of amending in this case? [2 marks]

(ii) These costs are likely to include:
• paying the Defendant the costs of searching for documents that related to the wrong road [0.5 mark]
• paying the Defendant the costs of a wasted inspection of the incorrect site [0.5 mark]
• paying the Defendant the costs of amending the Defence to meet the amended Particulars of Claim [0.5 mark]
• attending / opposing / dealing with the application to amend [0.5 mark]
• [Maximum of 1 mark under item (ii)]
[2 marks maximum]


Comments:
 both elements of the costs order are required to get the full mark; you could also have had ‘caused by’ or ‘arising from’ would also be acceptable
 you won’t know that you need to make 3 distinct points to get full marks, but should appreciate that you need more than the answer at (c) (i), because 2 marks are indicated
 ‘to Mabel’ is the other indication that the examiner is looking for some application to the facts of the case
 Read the questions carefully!

6

(d) Assume the error as to the name of the road had been discovered prior to service of the Claim Form and Particulars of Claim. Would this have altered your advice regarding amendment?
[1 mark]

(d) Amendment before service:
(i) Yes [0.5 mark]
(ii) Prior to service amendments of this nature [0.5 mark]
(iii) can be made without the permission of the court/ consent of the other party [0.5 mark]
[1 mark maximum]

Comments:
 Just ‘yes’ or ‘no’ is never going to be enough for a whole mark, as we have been telling you!
 Always give a reason with a yes/no answer
 So even though (ii) appears to be setting out the question, you need to include it

7

(a)
When is it appropriate to seek further information

(b)
You may only ask questions about a statement of case. True or False?


(c)
What is the purpose of seeking further information?

• When you need to clarify or seek additional information about a matter in dispute


• False

• Seeking information in order to prepare your own case or understand the case you have to be meet

8

(d)
Can you ask anything you like?

(e) How should the request be made

• No
• It must be concise
• Reasonably necessary and proportionate
• To prepare/know case to be met

e)`
• In a written request,
• Which should be served by email
• In a letter, or in a document attached to a letter
• In a single comprehensive document
• Not dealing with any other matters

9

Question 1: Request For InformationPart 18

Part 18: rr 1 and 2 and PD 18
Quiz answers will be on Moodle at the end of the week
Request and Reply under Part 18 for Question 1 will also be on Moodle at the end of the week.

10

Amendment within the limitation period:Can I ever amend my statement of case without permission of the court?

Yes:
At any time before it has been served: r 17.1(1)
Or with the written consent of the parties, after its has been served: r 17.1(2)(a)
But not if limitation has expired: r 17.4 and 19.5
Nor if you are seeking to remove, add or substitute a party: r 19.4

11

Amendment of Statement of Case within the limitation period: court’s approach

Generally, this will be allowed assuming it is furthers the overriding objective: is it just and proportionate?
And has some/real prospects of success. See WB 17.3.5 and 17.3.6 (APA Civil 22.16)
It is a very commonplace occurrence.
The person seeking the amendment will usually have to pay the costs of and arising from/caused by/occasioned by the amendment.
If the document in question has already been served, permission of the court (or consent of other parties) is required: r 17.1(2).

12

Adding/Substituting/Removing New Party

To add/substitute/remove a party after service of the claim form (CF) always needs court’s permission: r 19.4(1)

Is it desirable to add a party, so the court can resolve all matters in dispute: r 19.2(2)(a); or
Is there an issue between a party and the new party connected to the matters in dispute and it is desirable to add the party so the court can resolve that issue: r 19.2(2)(b)

13

But: the general approach is different in some cases

If the proposed amendment is very late
And/or if the basis of the claim is fundamentally changed
And/or there will be prejudice to the other side
See APA 22.08 – 22.15: The court may consider a range of factors: how late application is made, whether need to amend arose from some recent disclosure or other good reason, earlier history of amendment in case, whether amending party can pay usual costs order; strain of litigation for personal litigants, effects on other litigants, length of any adjournment of trial (see LGS notes)
See: WB : 17.3.5, 17.3.7 including WB supplement at p 42 and:
Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894
Swain-Mason v Mills & Reeve [2011] EWCA Civ 14 (see paras 68-72)

14

Question 2 Chronology

Oct 2009 breach of contract
2013 defects discovered
Sep 2015 CF against Surrey Manufacturing plc
Oct 2015 expiry of limitation period
Nov 2015 Defence (C sued wrong party)
Jan 2016 C wishes to add/substitute Surrey Industrial Manufacturing Ltd

15

After limitation has expired?: see s 35 Limitation Act 1980

Generally, not allowed, as it will deprive the D of his limitation defence
Because the amendment takes effect from the date of the original statement of case: s 35(1) LA 1980
3 main categories of exceptions:
Adding a new cause of action
Adding a new party
Where it affects accrued limitation rights

16

New cause of action

Court will permit this after limitation has expired if
It arises out of the same or substantially the same facts as are already in issue in the original action: s 35(5)(a) LA 1980, r 17.4(2)
See: Goode v Martin [2002] 1 WLR 1828
It arises in a personal injury case in which the court has exercised its discretion under s 33 LA 1980: s 35(3) LA 1980
It is an original counterclaim or set off: s 35(3) LA 1980

17

Amendment affecting accrued limitation rights/D adding a new defence

Will a D be able to amend his defence after the limitation period has expired?
Generally Yes, unless
The effect of the amendment is to blame another party whom C cannot now sue, AND
It is D’s fault in not seeking to amend earlier
But, the courts may allow D to amend if C had access to the relevant facts in any event
See APA 22.44 – 22.45; WB 17.3.5, p506: Cluey v R L Dix Heating [2003]

18

Adding a new party: permitted after limitation has expired: see s 35 LA 1980:

Where the court has exercised its discretion under s 33 LA 1980 in a personal injury case
Where the amendment simply alters the capacity in which a party claims, provided the party already had that capacity at the outset of proceedings, or has since acquired it: r 17.4(4) – e.g. after grant of probate person has capacity as executor

19

Adding or substituting a party after the end of the relevant limitation period: r 19.5(2)

Only if
Relevant limitation period was current when the proceedings were started
And
The addition or substitution is necessary

20

New party where it is necessary to add or substitute


Eg where the original party has died or been declared bankrupt and his interest or liability has passed to the new party: r 19.5(3)(c)
Where it is legally necessary in order to maintain the action r 19.5(3)(b)
this is technical and complex
See Merrett v Babb [2001] QB 1174
See: WB 19.5.4; APA 22.33 – 22.36
See LG7A Notes, p.19

21

Adding or substituting where there has been a mistake in naming a party

r 17.4(3)
Mistake going to name but not to identity: r 17.4(3)
Restricted to genuine mistakes which would not cause a reasonable doubt about the identity of the party. You are simply altering/correcting the name, not substituting a new party: see WB 19.5.6, (helpful notes on the differences between 19.5 and 17.4).
r 19.5(3)
Mistake going to identity: r 19.5(3)(a)
Substituting a new party, in place of the one wrongly named
Here the test is: is it possible to identify the intended D by reference to a description specific to the case? WB 19.5.7
So here, the description is right, but the name wrong and so a new party is substituted, who has already been properly described

22

Question 3 - Chronology

Aug 2015 Claim issued
Unknown Date of service of Defence
11 Nov 15 Master’s order for Victor to provide further particulars of the Defence
27 Nov 15 Date for compliance with order
11 Dec 15 Unless order for further information
4 Jan 16 Date for compliance with unless order
Judgment entered in accordance with order
14 Jan 16 Judgment served on Victor
21 Jan 16 Application for relief issued
29 Jan 16 Application listed for hearing

23

3

Order to provide further information about the Defence: r 18.1
On D’s failure to comply, C could apply to court for an unless order PD 29, para 7.1
Should do so without delay, but should first warn the other side of his intention to do so: PD 29 para 7.2
The unless order specifies an exact deadline for compliance: r 2.9 and a precise sanction for non-compliance: r 3.1(3)(b)
See: r 3.1(2) for court’s case management powers

24

Court’s power to strike out

Power: r 3.4(2)(c): failure to comply with rule, PD or court order
See WB 3.4.4
Application should be made ASAP, and before allocation, if possible
It is an order of last resort
Supports overriding objective: r 1.1(2)(f) enforcing compliance with rules, PDs and orders
AND court’s power to make orders of its own initiative
See: r 3.3: for the process
And PD3A, para 2 for further detail

25

Extension of time to comply with an unless order?

Parties may not extend the time for complying with an unless order: r 3.8(3)
Except as provided in r 3.8(4)
r 3.8(4):
written agreement
agreement made before time expires
up to 28 days maximum
extension does not put hearing at risk
provided court does not order otherwise

26

Court’s power to strike out

Power: r 3.4(2)(c): failure to comply with rule, PD or court order
See WB 3.4.4
Application should be made ASAP, and before allocation, if possible
It is an order of last resort
Supports overriding objective: r 1.1(2)(f) enforcing compliance with rules, PDs and orders
AND court’s power to make orders of its own initiative
See: r 3.3: for the process
And PD3A, para 2 for further detail

27

Not able to comply with the unless order:

Appeal is not the right route
Could apply to vary or revoke the order: r 3.1(7): need to show a material change of circumstances; or facts forming basis of original order were misstated; or manifest mistake by the judge
Tibbles v SIG plc [2012] 1 WLR 2591
See LG5A Notes, p 20-21
This is, therefore, very difficult.

28

Failure to comply with an unless order:


Apply for relief from sanctions under r 3.8
If judgment as already been entered under r 3.5, apply for that judgment to be set aside: r 3.6
In either case the court applies the principles/test for relief from sanctions: r 3.9
The starting point is that the original order was properly made

29

Relief from Sanctions – CPR r 3.9(1)

The court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:

(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.

30

Court’s approach: apply the 3 stage test in Denton v White

stage (i): identify and assess the seriousness and significance of the failure to comply with any rule, PD or court order;
stage (ii): consider why the default occurred;
stage (iii): evaluate all the circumstances of the case so as to deal justly with the application, including the factors at (a) and (b);

31

SAQ


(a)
(i) Permission of the court OR consent of the Defendant will be required [0.5 mark]
(ii)as the Particulars of Claim have been served. [0.5 mark]
(b)
(i) The overriding objective and amendment should be allowed where this is just and proportionate (both elements are required for the mark) [1 mark]
(ii) Amendments ought to be allowed which ensure that the real dispute between the parties will be adjudicated upon [0.5 mark]
(iii) Permission to amend will be refused if it has no real prospects of success [0.5 mark]
 

 
 

32

SAQ continued

(c) (i) The Claimant will have to the bear the costs of and occasioned by the amendment (both elements required for the mark) [1 mark]
These costs are is likely to include
paying the Defendant the costs of searching for documents that related to a different road [0.5 mark]
Paying the Defendant the costs of a wasted inspection of the incorrect site. [0.5 mark]
Paying the Defendant the costs of amending the Defence to meet the amended Particulars of Claim. [0.5 mark]
[2 marks maximum ]
(d) (i) Yes [0.5 mark]
prior to service amendments of this nature can be made without the permission of the court [0.5 mark]
or consent of the other party. [0.5 mark]
[1 mark maximum]