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Flashcards in Week 10 materials Deck (36):
1

The police have reasonable grounds for suspecting that Edward, who is 22, has committed a residential burglary. On Monday morning, Edward is arrested and arrives at the police station at 1130am. Edward asks for a solicitor. The custody officer has doubts as to Edward’s capacity. What action should be taken prior to interviewing Edward?
 
[A] A solicitor must be obtained as Edward has requested one. Until the issue surrounding Edward’s capacity is resolved, he is to be treated as having capacity and therefore no one else other than a solicitor needs to be called at this time.
[B] Edward must be treated as mentally vulnerable and an appropriate adult called. As Edward has requested a solicitor, a solicitor should be called for him.
[C] Edward must be treated as mentally vulnerable and an appropriate adult called. As Edward will have an appropriate adult, a solicitor is not required.
[D] As there are doubts over Edward’s capacity, he cannot be interviewed before his capacity is ascertained. The police should automatically extend the period that Edward is detained at the police station without charge whilst they await certainty as to Edward’s capacity.
 

[B] is the correct answer

[A] INCORRECT. Where the custody officer had any doubt about the mental state or capacity of a detainee, the detainee must be treated as mentally vulnerable and an appropriate adult called. Code C PACE. D1.63
[B] CORRECT. As above. A person who is arrested and held in custody at a police station has a right to consult with a solicitor privately at any time. PACE 1984 s58. D1.55
[C] INCORRECT. An appropriate adult has a different role to that of a solicitor. D1.66
[D] INCORRECT. The normal maximum period of detention without charge is 24 hours from the time Edward arrives at the police station. There is no mechanism for automatically extending this time limit. D1.67-D1.68
 
Answer is part of the reading list, but not part of the Workbook qus, so good example of how you must make notes on all topics.
Answer also covered in Crim Lit LG 1
 

2

Name two ways in which the Crown Prosecution service can commence proceedings against an accused.
(2 marks)

written charge & requisition
(1 mark)
By way of charge at Police stn (following arrest).
(1 mark)
(NB Voluntary Bill of Indictment is a third way, you will cover this later in the course)
(NB. Laying an information and summons = private pros.)
X-ref LGS 1 PPTs; BCP D5.2

3

Generally, an unconvicted defendant has the right to be granted bail by a court.
Give four examples of statutory grounds where the court is not required to grant bail (as a starting point think about the bail applications you made in Criminal Advocacy) (4 marks)

Para 2: substantial grounds for believing D would:
- fail to surrender to custody; (1 mark)
- commit an offence while on bail; (1 mark)
- interfere witness/obstruct course of justice (1mark) D7.12
2. Para 2A: already on bail for another offence (1mark) D7.25
3. Para 2ZA: D would commit offence causing physical/mental injury to associated person (1 mark) D7.24
4. Para 3: D own protection/welfare(if juvenile)(1mark) D7.26
5. Para 4: D already serving a custodial sentence for another offence. (1 mark) D7.27

6. Para 5: Court has insufficient time/information (either phrase gains the mark) (1 mark) D7.28
Para 6: D arrested for absconding in present proceedings (1 mark) D7.29
Para 6A-6C: Drugs cases – D refuses drugs test (1 mark) D7.30
Para 6Z: Murder D7.31

(X-ref LGS 2 PPTs)
Compare:
Sch 1, Part 1, Para 1A: This discounts several grounds for withholding bail if no real prospect def will be sentenced to custodial sentence. (BCP D7.36)




4

What is the custody time limit (CTL) in the following scenarios :
a) From first appearance to start of trial for a summary offence in the Mags Ct; and
b) From when an either-way offence is sent to the Crown Court and the start of the trial in the Crown Court?
(2 marks)

a) Summary offences in Mags Ct: 56 days between first court appearance and start of summary trial. (1 mark)

b) Either-way offences in Crown Court:
112 days between sending for trial to Crown Court and start of trial. (1 mark)

LGS 2 PPTs; D15.7; D15.14-15

5

To prevent a defendant being released on bail after the expiry of a custody time limit, what must the prosecution prove? (2 marks)
When must the prosecution apply to extend the custody time limit? (1 mark)


Pros must prove:
‘good and sufficient’ reason for extension, &
that they have conducted the case with ‘due diligence and expedition’. (2 marks)

See Manchester Crown Court, ex p McDonald [1999] 1 WLR 841
And
Prosecution must apply before expiry of CTL for an extension: (1 mark)

NB. For convenience, extension of CTLs should be addressed when trial date fixed/An already extended CTL may be further extended
LGS 2 PPTs; D15.23

6

What is the normal maximum period of detention without charge? (1 mark)
By whom may the period of detention without charge be extended and up to what period can it be extended in respect of a person under arrest for an indictable offence? (4 marks)

Normal maximum period of detention without charge is 24 hours (1 mark)
Up to 36 hours (1 mark) from relevant time by officer of rank of superintendant or above (1 mark)
Up to 96 hours (1 mark) from relevant time by magistrates’ court (1 mark)
NB. Relevant time: when arrested person arrives at first police station
LGS 1 PPTs; D1.67-8

7

Workbook Q 1(a):Duty 1: Service of Initial Details of Crown’s case

NB. ABH is an either-way offence (You need to know this classification)
Upon request from defence, pros required to serve Initial Details on defence as soon as practicable and no later than beginning of day of first hearing
Applies both summary and either way offences
Where D in police custody before first hearing CPS must serve case summary and previous convictions
Where D not in police custody CPS must serve case summary, interview, relevant witness statements and exhibits, previous convictions , victim impact statement
(Crim PR, Part 8)
Jack: CPS should serve initial details as soon as practicable and not later that beginning day of first hearing: case summary and previous convictions (if def advocate identified will be served digitally)
BCP D5.19

8

Q1 (b) (i) Duty 2: Service of remainder of Pros case before trial

If NG plea: Service of all remaining evidence upon which the Crown will rely at trial, (eg witness statements, transcript of interview etc.) must be served.BCP D9.1
Applies to summary (Mags ct) trials as well as CC trials
(Unused material must also be served; see next slide)
If Guilty plea: only Initial Details must be served but in practical terms the Crown should serve any further detail for the defence to make a plea in mitigation (sentence)

9

Duty 3 Crown’s Disclosure of Unused Material: s 3 CPIA 1996

What is Unused Material? Material in CPS possession that will NOT form part of the CPS case at trial.
Duty? Disclose to defence unused material “any previously undisclosed material which might reasonably be capable of undermining CPS case or assisting case for accused” D9.15-16
If pros consider they are not in possession of any such material must inform def in writing D9.20
Time limits? “as soon as reasonably practicable”, D9.23

10

Duty 4: Continuing duty to review

Continuing duty on CPS to review its evidence and make disclosure of any material undermining pros or assisting def: s7A CPIA 1996 (D9.24)
s.8 CPIA: Def can apply to court for an order that pros disclose any material which might assist def case. NB. Before an applic. Can be made under S.8 for a particular piece of disclosure def must have served def statement (see def obligations below) AND pros must have complied with obligations to review under s.7A following service of def statement. So s.8 is a situation where the def says pros has not complied with duty and s.8 often relates to particular piece of disclosure that def wants. D9.26-27

11

Public interest immunity

Failure of CPS to disclose

Commencement date for CPIA provisions

Public Interest Immunity? CPS can resist disclosure in public interest (eg protect identity of police informant/ undercover officers) (D9.50)
Failure CPS to disclose? Appeal or stay proceedings for abuse of process (we will return to appeals and abuse of process later in the course)
Commencement date for CPIA provisions: 1 April 1997 (D9.4)

12

Q 2 (b) (ii) Defence obligations:

Duty 1: service of Defence Statement (DS)
Required? Crown court trial mandatory (D9.29). Mags Ct voluntary (D9.37).
Time limits: CC: 28 days/Mags:14 days from CPS complying or purporting to comply with s.3 CPIA (D9.37;D9.40)
Content: DS must set out:
Nature of accused’s defence
Facts of Crown’s case he takes issue with
Why D takes issue
Matters of fact on which intends to rely
Any points of law, inadmissibility of evidence or authorities to be argued at trial (D9.29)
particulars of alibi including witness (D9.33)
Failure to comply/ if D departs from DS at trial? HHJ can invite jury to draw adverse inferences (D9.42)

13

Duty 2: Notification of Defence witnesses (s6C CPIA 1996)

**Mandatory** both Crown and Mags Ct trials (D9.34)
This notification is separate from DS
Requires defence to notify the court and CPS of the names, addresses & DOB (or if such details are not known, other identifying info) of any witnesses it intends to rely on at trial other than defendant and alibi witnesses already disclosed.
Any changes in witnesses requires a Notice of Amendment being served.
Time limits. Defence has 28 days (CC)/14 days (Mags) from the CPS service of unused material.
Failure to adhere to s.6C (giving notice late/ calling witness not identified in notice)? defendant at risk of adverse inferences being drawn though court needs to consider if there is any justification for the failure (D9.42)
CPS/Police can seek to interview defence witnesses.

14

Workbook Q 1: c) How does Court approach bail?

Procedure: D7.67-68/Law: D7.11-12
Pros to provide court with all information in their possession relevant to bail (D7.68)
Pros summarises facts (if has not done so already)
Any previous convictions handed to bench
Pros sets out objections with reference to the Bail Act 1976
S.4(1) Bail Act 1976 with Sch 1: rebuttable presumption in favour of bail.(D7.6)
AS ABH is triable on indictment and imprisonable, bail need not be granted if there are “substantial grounds” for believing D will:
- Fail to surrender to custody
- Commit an offence while on bail
- Interfere with witnesses or obstruct the course of justice (D7.12)
NB. If no real prospect of custodial sentence, bail cannot be held on any of the above three grounds (D7.15)

15

Workbook Q 1: c) How does Court approach bail?Cont.

Defence : resist the application and argue that no substantial grounds exist. May offer conditions if a “real risk” of FTS/CFO/IWW, and invite court to impose conditions that “appear necessary” (D7.45)
Court will decide then to remand in custody (RIC), remand on conditional bail (ROCB) or remand on unconditional bail (ROUB), giving reasons (D7.68).

16

In deciding whether or not to grant bail, the court is required to have regard to the following factors: ( para 9 of Sch. 1 (Part I – imprisonable offences) to the Bail Act 1976 )

(a) the nature and seriousness of the offence and the probable method of dealing with the offender for it;
(b) the character, antecedents, associations and community ties of the accused;
his 'record' for having answered bail in the past;
[prior to conviction,] the strength of the evidence against him;
[if satisfied there are substantial grounds for believing D will commit an offence while on bail,] the court must have regard to risk that he may do so by engaging in conduct likely to cause physical or mental injury to any other person.

BCP D7.16

17

Q 1 d) What if Jack is already on bail?

He loses his “right to bail”.
Court NEED not grant bail, so discretionary:

Indictable + imprisonable (eg ABH): Pt 1 of Schedule 1, BA 76)
“The defendant need not be granted bail if
charged with an indictable offence and
he appears to have been on bail at the date of the offence”(D7.25)

Summary only + imprisonable: (eg common assault) (D7.35)


18

1 e) What steps can Jack take if bail is refused?

Option 1: Repeat bail application before Mags
Bail Act 1976, Sch.1, Part IIA:
Fully-argued bail application allowed at the next hearing after the hearing when bail was refused (whether or not there was a fully-argued application at that hearing);
Thereafter, court “need not hear arguments as to fact or law which it has heard previously”
Option 2: New considerations
Once repeat bail application has been made, Jack cannot reapply unless has fresh arguments (eg a surety). Requires there to be ‘new considerations’/material change in circumstances for the court
D7.70

19

1 e) [cont’d] Option 3: Appeal to judge in chambers at the Crown Court.

Once Jack has applied for and been refused bail by the Mags, he can apply to CC judge:
[NB Tactically he MAY wish to repeat the same application in mags’(see Option1) before he does so, but many defendants choose to go straight to the CC] (D7.90)
Complete rehearing/Can make exactly same arguments in CCT as MC (D7.84)
Legal advisor in mags’ must serve certificate of full argument.(D7.68)
Procedure: serving written notice on the prosecution, MC and CCT as soon as reasonably practicable (D7.83)
Often in chambers (D7.84)
Heard by circuit judge or recorder (D7.84)
Rules re repeated bail apps, the same as in the MC (D7.86)

20

1 e) What steps can Jack take if bail is refused?

Option 1: Repeat bail application before Mags
Bail Act 1976, Sch.1, Part IIA:
Fully-argued bail application allowed at the next hearing after the hearing when bail was refused (whether or not there was a fully-argued application at that hearing);
Thereafter, court “need not hear arguments as to fact or law which it has heard previously”
Option 2: New considerations
Once repeat bail application has been made, Jack cannot reapply unless has fresh arguments (eg a surety). Requires there to be ‘new considerations’/material change in circumstances for the court
D7.70

21

1 e) [cont’d] Option 3: Appeal to judge in chambers at the Crown Court.

Once Jack has applied for and been refused bail by the Mags, he can apply to CC judge:
[NB Tactically he MAY wish to repeat the same application in mags’(see Option1) before he does so, but many defendants choose to go straight to the CC] (D7.90)
Complete rehearing/Can make exactly same arguments in CCT as MC (D7.84)
Legal advisor in mags’ must serve certificate of full argument.(D7.68)
Procedure: serving written notice on the prosecution, MC and CCT as soon as reasonably practicable (D7.83)
Often in chambers (D7.84)
Heard by circuit judge or recorder (D7.84)
Rules re repeated bail apps, the same as in the MC (D7.86)

22

(f) Prosecution appeal against grant of bail

Bail (Amendment) Act 1993/Applies where
imprisonable offence
case being conducted by or on behalf of DPP (inc. CPS)
CPS opposed bail (D7.92)

Should be used “judiciously and responsibly”
Time limits : CPS must give oral notice at conclusion of hearing- before D is released from custody and written notice within 2 hours of end of hearing
D remains in custody, appeal heard within 48 hours, D produced at court
CC judge will refuse bail or bail without conditions (D7.93)

(g) Other matters: Plea, allocation, representation order

23

Workbook Q2: Simon

Breach of bail conditions: Bail Act 1976, s.7
Law? NOT a criminal offence. Creates a power of arrest which permits a constable to arrest a person who is reasonably believed to fail to surrender or likely to breach or has breached any condition of their bail (or a surety has informed police D unlikely to surrender)(D7.102).
Procedure? Must be brought before a court as soon as practicable and within 24 hours of arrest (excluding Sundays), or released (D7.102).
Hearing cannot be adjourned.

24

Breach of bail: cont’d

Consequences

s. 7(5) BA 1976 : two stage process (D7.104-5)
First: Court decides whether or not there has been a breach of a condition, whether likely to be or whether D likely to fail to surrender.
Answer ‘no’: Defendant admitted to bail on precisely the same conditions.
Second: If court is of opinion that there has been a breach of condition, then consider whether to grant bail and, if so, whether subject to same or different conditions
NB: Defendant cannot argue “reasonable excuse” for breach, though his reasons taken into account at 2nd stage

Consequences?
If the court find there was a breach of bail, it can:
grant Simon bail on the same conditions; or
different conditions; or
remand into custody until trial. (D7.104-5)

NB. If mags NOT of opinion that D is likely to fail to surrender or has broken or is likely to break condition, mags MUST grant bail on same conditions as before (D7.104)

25

Failing to surrender/absconding s.6 Bail Act ‘76

Law? What is “surrender”? Defendant needs to attend court on correct day and at correct TIME.
Failure to surrender?
Not a breach of bail......this is a separate criminal offence
Defence? Burden of proof on Defendant to show he had “reasonable cause” not to surrender/ attend (D7.110-112)
Procedure? Seek to vacate trial date?

26

What are consequencesfor defendant who fails to attend court?

Trial in absence of D.
Bench warrant for D’s arrest (D7.98).
Conviction for FTS, regardless of the result of the burglary case. (D7.111)
If s 6 charge is proved/admitted, sentence for FTS. In Mags, up to 3 months imprisonment and/or fine of any amount (D7.111).
FTS will appear on his record and affect chances of bail in the future.
NB. If Simon actually FTS instead of just talking about it, should be arrested and brought before court as soon as appropriate after arres (D7.113)
These consequences also appear on the PPTs for LG 2

27


Yuri sued Rhonda for losses he suffered due to injuries he sustained to his arm while working for her as a butler. He served a claim form and particulars of claim on Rhonda. While Rhonda filed an acknowledgment of service, she failed to file a defence in time. Yuri has now obtained judgment in default of defence against Rhonda.

Which ONE of the following statements is WRONG?


Select one:


A. The Court may set aside the judgment if Rhonda shows she has a real prospect of successfully defending the claim.

B. The Court may set aside the judgment if Rhonda shows she has a prospect of successfully defending the claim. Correct

C. The Court may set aside the judgment if Rhonda shows there is some other good reason why she should be allowed to defend the claim.

D. The Court must set aside the judgment if Rhonda applied for summary judgment before judgment was entered in default and the application has not been disposed of.

ANSWER [B]. [A] Wrong. This is part of the test set out in CPR r. 13.3(1)(a). [B] Correct. This mis-states the relevant part of the test set out in CPR r. 13.3(1)(a), which is that the defendant has a real prospect of successfully defending the claim. [C] Wrong. This is part of the test set out in CPR r. 13.3(1)(b). [D] Wrong. The court must set aside a judgment (r. 13.2(a)) where any of the conditions in r. 12.3(1) or 12.3(3) are not satisfied. The relevant one is r. 12.3(3)(a)(ii), that the defendant has applied for summary judgment and the application has not been disposed of. [WB13.3-13.3.2 and CPR rr 12.3, 13.2 and 13.3]

The correct answer is: The Court may set aside the judgment if Rhonda shows she has a prospect of successfully defending the claim.

28


Charles wishes to sue Sunny Villas Travel Ltd, through whom he booked his disappointing summer holiday. He wishes to claim damages for loss of enjoyment, distress and the cost of alternative accommodation he arranged because the villa booked was still under construction. Your advice is sought about what steps should be taken before proceedings are issued.

Which ONE of the following statements is CORRECT?


Select one:


A. Once Sunny Villas has received Charles letter setting out his claim, it should respond in a reasonable time, but in any event within 28 days

B. If Sunny Villas fails to respond to an invitation from Charles to use ADR, the court may consider it a failure to comply with the relevant pre-action procedure Incorrect

C. If Charles pursues ADR with Sunny Villas but no offer to settle his claim is forthcoming, there is nothing more Charles has to do before issuing proceedings.

D. If Sunny Villas and Charles each provide sufficient information so that they understand the other’s position, they do not need to disclose any documents now.


ANSWER: [D]
Pre-action Conduct
(i) Is wrong, as a defendant should respond in 14 days in a straightforward case and no more than 3 months in a very complex one (PD Pre-Action Conduct and Protocols, para 6(b))

(ii) Is correct, (PD Pre-Action Conduct and Protocols, paras 11 and 14(c))

(iii) Is wrong, as litigation should be a last resort and parties should take stock and at least seek to narrow the issues before issuing proceedings (PD Pre-Action Conduct and Protocols, para 12)

(iv) Is wrong, since parties should disclose key documents which are relevant to the issues in dispute (PD Pre-Action Conduct and Protocols, para 6 (c)); here there would be, e.g., documents in relation to the alternative accommodation.




The correct answer is: If Sunny Villas and Charles each provide sufficient information so that they understand the other’s position, they do not need to disclose any documents now.

29


Louise Johnson is making a claim for damages for personal injuries against Malcolm Phillips. She has already served her claim form and is about to serve her particulars of claim. You have been asked to advise on the procedure.

Which of the following statements numbered (i) to (iv) is/are CORRECT?

(i) A schedule of details of any past and future expenses and losses must be served with the particulars of claim.
(ii) The particulars of claim must be served within the period of validity of the claim form.
(iii) A response pack must be served with the particulars of claim.
(iv) If the defendant files an acknowledgement of service, he will then have an extra 14 days to file his defence.

Select ONE of the following:


Select one:


A. (i) and (iii) only.

B. (ii) and (iv) only. Incorrect

C. (i), (ii) and (iii) only.

D. (i), (iii) and (iv) only.


ANSWER: [C]
Statements of Case. For the response pack applicable to all cases, see CPR r 7.8(1). In relation to personal injury claims, for the schedule of past and future expense and losses, see PD 16 paras 4.2. For the time within which the particulars of claim must be served, see CPR r 7.4(2). (iv) is wrong: if a defendant files an acknowledgement of service he has 28 days from the service of the particulars of claim to file his defence: CPR r 15.4(1)(b)

The correct answer is: (i), (ii) and (iii) only.

30


Carola has brought a claim against Dean for £12,000 being the price of goods sold and delivered. Dean has filed a Defence and Counterclaim seeking to set-off a Counterclaim for damages said to amount to £8,000 based on an allegation that the goods were not of satisfactory quality. The District Judge has allocated the claim to the fast track and made a direction for standard disclosure. Carola has a letter from Edward, one of her other customers who bought the same type of goods from her as Dean, which says there were similar defects in the goods Edward received from Carola. You are asked to advise whether Carola will have to disclose Edward’s letter to Dean in these circumstances.

Which ONE of the following statements is CORRECT?


Select one:


A. Yes, because Edward’s letter could adversely affect Carola’s case. Correct

B. Yes, because Carola is obliged to disclose documents which may lead Dean on a train of inquiry.

C. No, because standard disclosure is limited to documents which support either party’s case.

D.
No, because Carola should have disclosed Edward’s letter when complying with the Practice Direction Pre-action Conduct and Protocols. Further, the failure to disclose Edward’s letter under the Practice Direction may render Carola liable to a costs penalty.

ANSWER [A]. [A] Correct. This question concerns the scope of standard disclosure as set out in CPR, r 31.6. [B] Wrong. Answer [B], which deals with train of inquiry documents, is wider than the categories set out for standard disclosure and is therefore wrong. [C] Wrong. Answers [C] and [D] are far too restrictive, and are wrong. Standard disclosure goes beyond the documents on which a party relies and includes the categories set out in r. 31.6(b), which include documents which adversely affect the disclosing party’s own case (r. 31.6(b)(i)). [D] Wrong. Answers [C] and [D] are far too restrictive, and are wrong. Standard disclosure goes beyond the documents on which a party relies and includes the categories set out in r. 31.6(b), which include documents which adversely affect the disclosing party’s own case (r. 31.6(b) (i)). [CPR, r 31.6]

The correct answer is: Yes, because Edward’s letter could adversely affect Carola’s case.

31


Brenda is claiming damages for breach of contract against Lucy. In her defence Lucy has denied that various heads of loss claimed by Brenda are recoverable.

Which ONE of the following is CORRECT?


Select one:


A. Damages will not be too remote if they either arise naturally from the breach, or if they can reasonably be supposed to have been in the contemplation of the parties when they entered into the contract as the probable result of breach. Correct

B. Damages will not be too remote if they were reasonably foreseeable as a consequence of the breach.

C. Lucy is entitled to rely on remoteness, but lack of causation is only available in claims in tort.

D. Any head of damage will be disallowed if Lucy can establish a failure to mitigate by Brenda.

ANSWER: [A]. [A] is correct, based on Hadley v Baxendale. [B] is the remoteness test in tort. Regarding [C], both causation and remoteness are available to defendants in breach of contract claims. [D], establishing a failure to mitigate usually results in a head of damages being reduced, not disallowed.

The correct answer is: Damages will not be too remote if they either arise naturally from the breach, or if they can reasonably be supposed to have been in the contemplation of the parties when they entered into the contract as the probable result of breach.

32


You are asked to advise on what amounts to a complete ground for making an order for an interim payment. Which of the statements numbered (i) to (iv) is/are CORRECT? (i) That the defendant is insured. (ii) That the claimant has a genuine need for money arising out of the consequences of the defendant’s alleged conduct. (iii) That judgment has been entered for damages to be decided by the Court. (iv) That the court is satisfied that the claim is for a substantial sum of money taking into account any set-off or counter-claim.

Select ONE of the following:


Select one:


A. (i) and (ii) only.

B. (i) and (iv) only.

C. (iii) only. Correct

D. (iv) only.

ANSWER: [C]. (i) is only one element of the test where there are two or more defendants, any of whom might be liable (CPR, r 25.7(1)(e)(ii)(a)). A need for the money is no more than a discretionary factor. (iii) is the condition in r 25.7(1)(b). (iv) states most of the condition in r 25.7(1)(c), but omits the most important element, that if the case went to trial, the claimant would obtain judgment.

The correct answer is: (iii) only.

33


Trespassers have been fishing in the lake on Seth's farm one night. Albert, a neighbour, saw figures emerging from a van, marked “Casterbridge Van Hire”, parked near the lake that night, and noted the van's registration number.

Which of the following is the CORRECT advice to give Seth?


Select one:


A. Issue a claim form against Albert seeking disclosure of the identity of those using the van on the night in question.

B. Issue a claim form against Casterbridge Van Hire seeking disclosure of the identity of those using the van on the night in question.

C. Issue an application for pre-action disclosure under CPR r 31.16 against Casterbridge Van Hire requiring disclosure of documents that will identify those using the van on the night in question. Incorrect

D. Issue a witness summons against Albert requiring him to give evidence describing the Defendants at any subsequent proceedings.

Answer [B] Seth needs to make a Norwich Pharmacal claim against the Casterbridge Van Hire to disclose the identity of those hiring that van on that night. Answer [B] describes the procedure for doing so. [C] is wrong as pre-action disclosure can only be ordered against someone who is likely to be a party to subsequent proceedings. [A] is wrong as the neighbour simply witnessed the trespassers and did not facilitate the wrong doing. [D] will not assist Seth in discovering the identity of the defendants before proceedings have begun.

The correct answer is: Issue a claim form against Casterbridge Van Hire seeking disclosure of the identity of those using the van on the night in question.

34


Chester has issued proceedings against Denzil claiming damages for personal injuries arising out of a road traffic accident in October last year. You have advised on quantum, and your view is that the damages for pain, suffering and loss of amenity are likely to be about £6,500, and that the special damages claim will be an additional £1,500. A Defence has been filed denying liability and disputing quantum. Directions questionnaires have today been completed by both sides and returned to the Court.

Which ONE of the following is a CORRECT statement as to what should happen next?


Select one:


A. Automatic directions as laid down by the CPR must be complied with, starting with disclosure of documents.

B. The claim will be allocated to the fast track. Correct

C. The claim will be allocated to the small claims track.

D. The claim will be provisionally allocated to the fast track.

ANSWER [B]. [A] Wrong. [B] Correct. [C] Wrong. [D] Wrong. After Directions Questionnaires have been filed, the Court will allocate the case to a track (CPR, r 26.5(1)). This is a claim for personal injuries where the damages for pain, suffering and loss of amenity are estimated at £6,500 so likely to be on the Fast Track because the value for PSLA is over £1,000. Therefore answer [B] is correct. [CPR, rr 26.3 26.5 and 26.6].

The correct answer is: The claim will be allocated to the fast track.

35


Breezy Builders Ltd has served a claim form and particulars of claim on Frank and Selina Thorn seeking payment of an unpaid invoice for £25,000 plus VAT. This is the final invoice for constructing a kitchen extension in the Thorn’s home in Wimbledon. Mr and Mrs Thorn filed an acknowledgment of service and have now received an application for summary judgment. They instruct you that they wish to defend the claim. Their case is that the under floor heating has never worked: the pipes burst, the kitchen was flooded, which ruined the newly installed wooden floor and damage was caused to all the kitchen units at floor level. They have had a range of quotations from £18,000 to £35,000 to carry out remedial works, including replacing the floor.

Which one of the following is CORRECT?


Select one:


A. If the court considers that there is a real prospect of the Thorn’s case on poor workmanship succeeding, but it is not certain of its exact strength, it will make a conditional order.

B. The court is likely to grant summary judgment for Breezy Builders Ltd but grant a stay until the Thorns’ counterclaim for the cost of the remedial work has been considered by the court.

C. The summary judgment application is likely to be dismissed because the Thorns have a claim for a set off which is a defence to this claim. Correct

D. Breezy Builders Ltd’s claim will be struck out because the Thorns have a good defence of set off.


Answer: [C].

[A] is wrong; the court does not need to be certain about the strength of a D’s case, provided it believes that D has a real prospect of success. PD 24 para. 4 provides that where it appears to the Court possible that a claim … may succeed but improbable that it will do so, the Court may make a conditional order. That is not the situation on this question.

[B] is wrong because a set-off is a defence, so it would be wrong to enter summary judgment.

[C] is right because a counterclaim for poor workmanship is a recognised category of set off. It therefore acts as a defence to the summary judgment application: APA Civil Procedure para 14.35.

[D] is wrong. In refusing the summary judgment application, the court will not strike out Breezy Builder’s claim, but rather permit the claim to proceed to trial.

The correct answer is: The summary judgment application is likely to be dismissed because the Thorns have a claim for a set off which is a defence to this claim.

36


Angela's solicitor served a list of documents on the defendant by sending it by first class post on Monday 21 September. Due to pressure of work the solicitor arrived at the Post Office at 5 pm, and missed the final post of the day, which had been collected at 4.30 pm.

Which ONE of the following statements is CORRECT?


Select one:


A. The list of documents is deemed to have been served on Tuesday 22 September.

B. The list of documents is deemed to have been served on Wednesday 23 September. Correct

C. The list of documents is deemed to have been served on Thursday 24 September.

D. The list of documents is deemed to have been served in the usual course of the post.

ANSWER: [B].
Service of a document other than the claim form is dealt with in CPR rr 6.20 to 6.29, with different rules covering deemed service. First class post is deemed to be served on the second day after posting providing that is a business day, otherwise on the next business day (r 6.26). The time it is left at the Post Office is irrelevant. The second day after the Monday is Wednesday, which is a business day.



The correct answer is: The list of documents is deemed to have been served on Wednesday 23 September.