Civil Litigation and Evidence

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.
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.
LBM304 Civil Litigation, Evidence and Remedies (PRD1 A 2016/17)
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Which one of the following CORRECTLY describes the position regarding evidence of fact
in a fast track County Court trial?
Select one:
A. Although direct oral testimony from witnesses whose statements have been exchanged
before trial is the normal rule, generally the exchanged witnesses’ statements will stand as
their evidence in chief.
B. Oral testimony is only allowed if the judge grants permission for special reasons. The
normal rule is that all evidence is adduced by witness statements, which are exchanged
before trial.
C. Direct oral testimony from witnesses whose statements have been exchanged before
trial is the normal rule for trial in open court. Where the trial is in private, evidence is given
either on affidavit or through exchanged witness statements.
D. Other than real evidence, all evidence must be given by direct oral testimony.
Statements of witnesses must be exchanged before trial.
ANSWER [A].
[A] Correct. The general rule is that any fact which needs to be proved at trial is to be proved by
the oral evidence of witnesses given in public (CPR, r 32.2(1)), such statements to be served on
the other parties in accordance with the court’s directions (r 32.4(2)). [B] Wrong. The general rule
is that any fact which needs to be proved at trial is to be proved by the oral evidence of
witnesses given in public (CPR, r 32.2(1)). [C] Wrong. The general rule is that any fact which
needs to be proved at trial is to be proved by the oral evidence of witnesses given in public
(CPR, r 32.2(1)). [D] Wrong. This answer ignores documentary evidence, which has to be
disclosed under Part 31 and is admissible at trial. It also wrongly states the main rule in absolute
terms, whereas CPR r 32.2(1) says the ‘general rule’ is that evidence of fact is proved by oral
evidence. CPR rr 32.2, 32.4.
The correct answer is: Although direct oral testimony from witnesses whose statements have
been exchanged before trial is the normal rule, generally the exchanged witnesses’ statements
will stand as their evidence in chief.
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Naomi is suing Darren for failing to repair her central heating properly. Darren carried out
the work last year. She has filed and served her claim form and particulars of claim and
he has filed his defence. The directions questionnaires have not yet been filed. Naomi’s
particulars of claim were drafted by her solicitor. You have been asked to advise on
whether Naomi can expect to recover unusually high self-employed earnings that she
says she lost as a result. On reading the papers you see that the claim has been pleaded
in negligence only, but in your view it should have been pleaded principally in contract,
with negligence in the alternative as a fall-back. Consequently, Naomi now wishes to
amend her particulars of claim to add a claim for breach of contract.
Which ONE of the following statements is CORRECT?
Select one:
A. Naomi can amend her particulars of claim, but only with the Court’s permission to do
so.
B. Naomi can amend her particulars of claim if Darren gives his consent in writing, but
otherwise will need the Court’s permission to do so.
C. Naomi cannot amend her particulars of claim as it has been served. She will have to
decide whether to continue with the claim as it stands or discontinue the claim and start
fresh proceedings which are properly pleaded.
D. Naomi is free to amend her particulars of claim. She does not need permission from
the Court or consent from Darren.
ANSWER [B]. [A] Wrong. After a statement of case has been served, a party may amend it only
with the written consent of all other parties or with the permission of the Court (CPR r. 17.1). This
answer does not take account of the possibility of getting Darren’s consent. [B] Correct. After a
statement of case has been served, a party may amend it only with the written consent of all
other parties or with the permission of the Court (CPR r. 17.1). [C] Wrong. After a statement of
case has been served, a party may amend it only with the written consent of all other parties or
with the permission of the Court (CPR r. 17.1). By excluding the possibility of amendment
altogether, this answer is wrong. [D] Wrong. After a statement of case has been served, a party
may amend it only with the written consent of all other parties or with the permission of the Court
(CPR r. 17.1). By suggesting that no permission or consent is needed, the answer is wrong. [WB
r. 17.1(2)] The correct answer is: Naomi can amend her particulars of claim if Darren gives his consent in
writing, but otherwise will need the Court’s permission to do so.
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Charles lives in a semi-detached house at 56 Granville Gardens, London N27 5DL. His
neighbour, Dennis, lives in number 58. Dennis has recently started building an extension
to his house. Charles believes the foundations for the extension encroach into his garden
at number 56. Charles is seeking a declaration on where the boundary between two
properties is located, and an injunction to prevent Dennis from building across that
boundary onto Charles’ land. There is no money claim. You are drafting the Particulars of
Claim.
Which one of the following statements is CORRECT?
Select one:
A. It is sufficient to describe Charles’s land in the particulars of claim as “56 Granville
Gardens, London N27 5DL”.
B. The particulars of claim must include the monetary value of the declaratory and
injunctive relief that is being sought.
C. The land must be identified, by reference to a plan where necessary.
D. A scale plan showing both properties and the location of the alleged encroachment of
the building work must be annexed to the particulars of claim.
ANSWER: [C] [A] Wrong. Where a claim is made for an injunction or declaration in respect of or
relating to any land or the possession, occupation, use or enjoyment of any land the particulars
of claim must state whether or not the injunction or declaration relates to residential premises
(PD 16, para 7.1(1)). [B] Wrong. The need for a statement of value only applies where the
claimant is making a money claim (CPR, r 16.2(1)(c) and r 16.3(1)). [C] Correct. Where a claim
is made for an injunction or declaration in respect of or relating to any land or the possession,
occupation, use or enjoyment of any land the particulars of claim must identify the land (by
reference to a plan where necessary) (PD 16, para 7.1(2)). [D] Wrong. Where a claim is made
for an injunction or declaration in respect of or relating to any land or the possession,
occupation, use or enjoyment of any land the particulars of claim must identify the land (by
reference to a plan where necessary) (PD 16, para 7.1(2)). This answer goes further than the
requirement in para 7.1(2), and while this may be desirable, the answer uses the word “must”,
which makes the answer wrong.
The correct answer is: The land must be identified, by reference to a plan where necessary.
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Towards the end of a hearing, His Honour Judge Howie indicates that he is minded to
make an order against your client, restraining her from assaulting or harassing her
neighbour. Your client is present at Court. Assuming the Court drafts the order in the way
that ensures it takes effect at the earliest possible time, advise your client on when the
order would take effect.
Which ONE of the following is the CORRECT advice?
Select one:
A. When the order is made.
B. When the order is sealed.
C. When the order is served.
D. When the time for appealing has expired.
ANSWER [A]. [A] is correct. Pursuant to CPR r. 40.7 a judgment or order takes effect from the
day when it is given or made unless the Court specifies a later date. Although such an injunction
would usually take effect when the order was served, the court has power to dispense with
service on the basis that your client has notice of its terms by being present in court: CPR r 81.8.
.[B], [C] and [D] are, therefore wrong.
The correct answer is: When the order is made.
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Amanda, who is 35 years of age, was injured at work by an electric shock on 7 June
2013. She was rendered unconscious and was on life support until 14 June 2014, at
which point she was sufficiently aware to know she had been seriously injured. At
that point she also remembered the circumstances leading up to the accident. Due to
different names being stated on her contract of employment and on her pay slips, she
only realised the correct identity of her employer on 4 April 2015. Amanda consulted
solicitors, who told her on 5 February 2016 that she has a strong case in negligence
against her employer.
Which ONE of the following statements is CORRECT?
Select one:
A. Limitation started to run on 7 June 2013.
B. Limitation started to run on 14 June 2014.
C. Limitation started to run on 4 April 2015.
D. Limitation started to run on 5 February 2016.
ANSWER: [C]. Time starts to run in a personal injury claim either on the date of the accident,
or, if the claimant does not have one or more of the items of knowledge set out in the
Limitation Act 1980, s 14(1), from the date she has the relevant knowledge. Here Amanda
did not know she had suffered a significant injury, or the identity of her employer (s 14(1)(a)
and (c)), until 14 June 2014 and 4 April 2015 respectively. Time therefore started running
from the latter date (subject to constructive knowledge in s 14(3), which is not raised by any
of the answers). Knowing that the accident gives rise to a strong case is irrelevant, as
stated in s 14(1).
The correct answer is: Limitation started to run on 4 April 2015.
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Last year Malcolm bought an estate in the country containing substantial areas of
woodland and moors. Malcolm’s land transfer includes a clause preserving Karen’s
sporting rights over a defined area of Malcolm’s land. Karen has exercised these sporting
rights for many years. The clause in the transfer gives Karen “the right to preserve and
rear game for normal shooting purposes”. Over the winter Malcolm carried out extensive
land clearance, removing a very large number of trees and ground cover. Karen has
brought High Court proceedings alleging unlawful infringement of her sporting rights on
the basis that the land clearance has substantially reduced the ability of the woodland on
Malcolm’s land to support game. Karen has applied for an interim injunction to restrain
Malcolm from undertaking any further land clearance.
What are the principles that apply to Karen’s application, and what is the first stage that should
be considered by the court?
Select one:
A. American Cyanamid principles, and whether there is a prima facie case.
B. American Cyanamid principles, and whether there is a serious question to be tried.
C. Injunctions where there is no defence, and whether there is no defence on the balance
of probabilities.
D. Injunctions where there is no defence, and whether there is no arguable basis for a
defence.
Answer: [B] The clause is not a negative covenant, and it is not at all obvious that there is no
defence to Karen’s claim. In fact the law on the merits in this type of case this is quite difficult.
When a similar case arose in Kitzing v Fuller [2016] EWHC 804 (Ch) the court had no difficulty in
recognising this was a simple prohibitory injunction application, to which the American Cyanamid
principles applied. The first stage is whether there is a serious question to be tried. The fact the
law, and how it applies, may be difficult does not mean there is not a serious question to be tried.
The correct answer is: American Cyanamid principles, and whether there is a serious question to
be tried.
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David, a pedestrian, is called on behalf of Euan at the trial of a negligence claim made by
Euan to recover the cost of repairs to his car, which was involved in a collision with
another car. David testifies that he saw both cars travelling at about 30mph, that the
defendant’s vehicle was no more than five metres behind Euan’s car, and that the
defendant failed to stop in time when Euan had to brake suddenly at a zebra crossing.
Although he has been a passenger in cars many times, David has never held a driver’s
licence.
Which ONE of the following is CORRECT?
Select one:
A. David’s evidence is inadmissible evidence of fact, i.e. evidence containing no
statements of opinion.
B. David’s evidence is inadmissible because he is not qualified as an expert.
C. David’s evidence is admissible because he is qualified as an expert having travelled as
a passenger in a car many times.
D. David’s evidence is admissible as non-expert opinion evidence.
ANSWER: [D] David’s evidence amounts to evidence of opinion as opposed to fact on a number
of relevant points, such as speed, distance and the suddenness of the braking. David is not
qualified as an expert, which would require qualifications and/or experience in an established
field of expertise. Merely being a passenger in a car, even on a great many occasions, would
never qualify him as an expert. However, the relevant points on which his opinion is sought are
made as a way of conveying relevant facts. This is permitted from a non-expert by the CEA
1972, s. 3(2).
The correct answer is: David’s evidence is admissible as non-expert opinion evidence.
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Emily has brought a County Court claim against Parvan, her building contractor, and
Rachel, her architect, in respect of problems that have come to light with an extension to
her home. The claim is stated to have a value of £20,000. You have been instructed to
advise Parvan. A holding defence was filed by Parvan 3 months ago. Your instructing
solicitors take the view that the main problems were caused by poor workmanship by
Graham, the carpenter employed by Parvan to construct the roof timbers for the
extension, although part of the blame may attach to Rachel for failing to supervise the
carpentry work. Which of the following statements numbered (i) to (iv) is/are WRONG? (i)
Parvan may issue a Part 20 claim against Graham without permission. (ii) Parvan may
serve a contribution notice on Rachel. (iii) The court will strike out any Part 20
proceedings brought by Parvan on the ground that any Part 20 claims would overly
complicate the claim. (iv) A Part 20 claim brought by Parvan can include relief for a
related remedy.
Select ONE of the following:
Select one:
A. (i) and (iii) only.
B. (i) and (iv) only
C. (ii) and (iii) only
D. (iv) only.
Answer: [A]. Permission is required to bring a Part 20 claim after the defence has been filed
(CPR, r. 20.7(3)), so statement (i) is wrong. Statement . (iii) is wrong partly because of the use of
the word “will”, and partly because overcomplicating is a rare reason for striking out, and unlikely
to arise on the facts. [A] is therefore the correct answer. One defendant is permitted to serve a
contribution notice on another defendant (r 20.6), so statement (ii) is correct. Statement (iv) is
also correct: Related remedies are one of the three categories of relief allowed under Part 20 (r.
20.7(1)(b) and 20.9(2)).
The correct answer is: (i) and (iii) only.
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You have been instructed on behalf of the claimant in a County Court claim for breach
of contract. The case has been listed for a case management conference. You have
advised your client that the particulars of claim need to be amended.
Which of the statements numbered (i) to (iv) is/are WRONG?
(i) When particulars of claim are first amended the amendments are usually shown in
red.
(ii) The claimant may amend the particulars of claim once without the court’s
permission at any time before disclosure takes place.
(iii) If the particulars of claim are amended, the defendant will usually have to pay the
costs of the amendment to the claimant.
(iv) Amendments can be permitted even as late as the trial.
Select ONE of the following:
Select one:
A. (ii) only.
B. (i) and (ii) only.
C. (ii) and (iii) only.
D. (ii), (iii) and (iv) only.
ANSWER: [C]. Statement (i) is correct. First amendments are usually made in red (see PD17
para 2.4 and APA Civil Procedure para 22.44), although there are other methods, such as the
use of numeric codes (PD 17, para 2.2). Statement (ii) is incorrect; permission turns on whether
the document has been served (see CPR, r 17.1 and APA Civil Procedure para 22.05).
Statement (iii) is incorrect. The party making the amendment usually has to pay the costs of (and
occasioned by) the amendments (see WB Vol 1 para 17.3.10 and APA Civil Procedure para
22.16). Statement (iv) is correct. Amendments can be allowed at any stage, even during the
trial. See WB Vol 1 paras 17.3.7 and 17.3.8. [C] is therefore the correct answer.
The correct answer is: (ii) and (iii) only.
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Henry suffered a de-gloving injury on 12 January 2013 whilst working at a meat packing
factory for SCV Sausages Ltd. He wishes to bring a claim against the company for
injuries sustained to his hand. Henry made requests to SCV Sausages Ltd for information
relating to the maintenance of the machinery and its health and safety records. No reply
was received. Henry’s claim for damages is in excess of £100,000 as he will not be able to
regain full use of his dominant right hand. In addition, he has been suffering from
depression since the accident. SCV Sausages Ltd has filed a defence pleading limitation.
Henry has applied for an order disapplying the limitation period.
Which one of the following statements best describes the approach that the Court should take
on Henry’s application to override the usual limitation period?
Select one:
A. It is likely that the Court will consider that SCV Sausages Ltd will be deprived of the
opportunity to adduce cogent evidence due to the passage of time since the accident. There
would have to be exceptional reasons to allow Henry’s application.
B. The primary consideration is the length of and reasons for the delay in issuing the
proceedings. The Court will also take into account the merits of Henry’s case and the
strength or otherwise of the defence.
C. The Court is restricted to a consideration of the statutory factors specifically set out in
the Limitation Act 1980.
D. The Court’s discretion is unfettered and it must consider all the circumstances of the
case.
Answer [D] In an application under the Limitation act 1980, s. 33 to disapply the limitation period
in a personal injuries claim the court shall have regard to all the circumstances of the case and
in particular to 6 statutory factors (s. 33(3)). Answer [C] is wrong because other factors beyond
the statutory factors may be relevant. Answer [D] reflects the wording of s. 33(3), and the HL
decision in Thompson v Brown [1981] 1 WLR 744.
The correct answer is: The Court’s discretion is unfettered and it must consider all the
circumstances of the case.
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Brian has brought a claim against his builder, Harold, seeking damages of £60,000. The
claim alleges that Harold failed to exercise reasonable skill and care in construction work
on an extension to Brian’s house. Harold denies the claim and has counterclaimed for
non-payment of the final instalment of the price in the sum of £25,000. A direction was
made for a single joint expert, whose report supports Brian on most of the important
points on liability. However, the report also says that the extent of the work necessary to
put right the defects will not become apparent for another two years due to continuing
settling of the construction work. You have been instructed to advise Brian.
Which one of the following is the most appropriate advice on the assumption that Brian would
like to receive as much money by way of compensation as possible and as quickly as possible.
Select one:
A. Apply for an interim payment.
B. Apply for summary judgment.
C. Apply for directions for trial.
D. Make a Part 36 offer.
Answer: [A] The helpful expert evidence, which is unlikely to be contradicted given it is from a
single joint expert, should mean that on an application for an interim payment the court can be
satisfied that, if the case went to trial, Brian would obtain judgment for a substantial amount of
money against Harold. A relevant condition under CPR, r. 25.7(1)(c) is therefore satisfied. As it
appears quantum will take at least two years to be finally formulated, an interim payment
provides an effective means of obtaining money on account of the damages likely to be
awarded.
The correct answer is: Apply for an interim payment.
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Your client has made an application to the County Court for an interim injunction. You
have been asked to advise if the District Judge has jurisdiction to make the order sought..
Which of the following numbered (i) to (iv) is/are CORRECT?
(i) A District Judge can grant an injunction in terms agreed between the parties.
(ii) A District Judge can make an order varying or discharging an injunction or
undertaking given to the court if all parties to the proceedings consent to the variation or
discharge.
(iii) Injunctions which are not agreed between the parties are usually only made by a
Circuit Judge.
(iv) An injunction can be granted by a District Judge in a claim allocated to the fast track.
Select ONE of the following:
Select one:
A. (i), (ii) and (iii) only.
B. (ii), (iii) and (iv) only.
C. (i), (ii) and (iv) only.
D. All of them.
ANSWER: [C] The only restrictions on District Judges hearing interim injunction applications are
in relation to freezing injunctions and search orders (PD2B 8.4). District Judges also do not
usually hear committal proceedings, unless these fall within the list of exceptions set out in
PD2B 8.3. See also PD2B 1.1A for the general allocation of jurisdiction.
The correct answer is: All of them.
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Cynthia and Thomas are in a civil dispute with each other and proceedings have been
issued in the High Court. By mistake, when providing inspection of documents to
Thomas’ solicitors, Cynthia’s solicitors accidentally included a letter from Cynthia’s
solicitors to Cynthia advising her that she has a very weak case. It is accepted on both
sides that this was an obvious mistake on Cynthia’s solicitors’ part. You are asked to
advise whether Thomas can use this document in evidence at trial.
Which ONE of the following statements is CORRECT?
Select one:
A. The document cannot be used because privileged documents are never admissible at
trial.
B. The document can be used because privileged documents provided for inspection,
even inadvertently, may always be used at trial.
C. The document may only be used at trial with the consent of Cynthia’s solicitor.
D. The document may only be used at trial with the permission of the Court.
ANSWER [D]. [A] Wrong. Permission of the Court may be granted to use the document. [B] Wrong. [C] Wrong. [D] Correct. Permission of the Court is required but may be obtained. The
document cannot be automatically used. See CPR r. 31.20 and WB commentary 31.20.1] The correct answer is: The document may only be used at trial with the permission of the Court.
Alan is about to issue a Part 8 claim against Donald. You have been asked to advise when
Alan must serve his written evidence on Donald.
Which ONE of the following is CORRECT?
Select one:
A. At the same time as the Part 8 claim form is served on Donald.
B. Within 14 days of Donald filing his acknowledgment of service.
C. At least 14 days before the day fixed for the first case management hearing.
D. At least 14 days before the day fixed for the trial.
ANSWER [A]. [A] Correct. Under CPR, r 8.5(2) the claimants evidence in a Part 8 claim must
be served with the claim form (see APA Civil Procedure para 8.11). The written evidence should
also have been filed at the court with the claim form when the claim form was issued (r 8.5(1)).
[B] , [C] and [D] are all, therefore, wrong.
The correct answer is: At the same time as the Part 8 claim form is served on Donald.
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Gertrude has brought a County Court claim against Henry which has been allocated to
the fast track. Directions have been made which include the disclosure, which is due
shortly, and the exchange of witness statements next month. It has become clear that
Gertrude’s witness statements will not be ready in time. Henry’s solicitors have refused
consent to an extension of time, so Gertrude’s solicitor has applied for an extension of
time, requesting that the application be dealt with without a hearing.
How should the court deal with this request?
Select one:
A. It should be refused because there is no power to dispose of interim applications
without holding a hearing.
B. While there is a power to dispose of an interim application without a hearing, the
request should be refused for this type of application, which is for relief from sanctions.
C. Requests in this form are dealt with by court officials. The sealed order made by the
court official on Gertrude’s application is served on both parties, who have 7 days after
service to apply to set it aside or varied.
D. If a District Judge considers the application is suitable for disposal without a hearing
the parties are informed, and may be given directions for filing written evidence.
Answer: [D] Applications can be dealt with without a hearing if the parties agree the terms of the
order, or if they agree to disposal without a hearing, or if the court does not consider a hearing
would be appropriate (CPR, r. 23.8). In the latter situation (which is the one that applies here),
the application notice is referred to a District Judge to decide if the application is suitable for
consideration without a hearing (PD 23A, para 2.3). If it is, the parties are notified, and the
District Judge may give directions for filing evidence (para 2.4). This is not an application for
relief from sanctions, because the deadline for exchanging trial witness statements has not
expired. See APA Civil Procedure, para 37.20.
The correct answer is: If a District Judge considers the application is suitable for disposal without
a hearing the parties are informed, and may be given directions for filing written evidence.
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Derelict Manufacturing SA (“DMS”) has brought a High Court claim against Industrial
Provident Insurers plc (“IPIP”) for the insured sum under a fire insurance policy. The
insurance covered DMS’s factory in Birmingham, which was destroyed by fire. DMS is a
company registered in France. In the proceedings DMS allege that it has ceased trading
and is facing insolvency because IPIP has refused to pay on the policy. You have been
instructed to advise IPIP.
Which one of the following is the best advice to give IPIP on whether it can protect its position on
costs?
Select one:
A. Security for costs is not available because IPIP is the defendant in the proceedings.
B. Security for costs may be sought on the basis that DMS is resident outside the
jurisdiction.
C. Security for costs may be sought on the basis that DMS is a company and there is
reason to believe it will be unable to pay IPIP’s costs.
D. Security for costs may be sought either on the basis that DMS is resident outside the
jurisdiction or that DMS is a company and there is reason to believe it will be unable to pay
IPIP’s costs.
Answer: [C] IPIP is the defendant, and security for costs is only available against claimants.
Security for costs on the basis of residence outside the jurisdiction (CPR, r. 25.13(2)(a)) is only
available where the claimant is resident outside the EU etc (as defined in para (a)), and DMS is
registered in France, an EU country. So the only basis for seeking security for costs is under r.
25.13(2)(c), company unable to pay costs.
The correct answer is: Security for costs may be sought on the basis that DMS is a company
and there is reason to believe it will be unable to pay IPIP’s costs.
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Derelict Manufacturing plc (“DMP”) has brought a High Court claim against Industrial
Provident Insurers plc (“IPIP”) for the insured sum under a fire insurance policy. DMP’s
factory was destroyed in a fire. DMP allege that the fire started on the ground floor, and
was caused by faulty electrics. IPIP refused to pay under the insurance policy on the
basis the fire was started deliberately by DMP’s directors. At the trial IPIP wish to call PC
Johnson, a police officer, to give evidence. In his witness statement PC Johnson says he
was passing the factory when he noticed smoke rising from the rear of the building. He
says he stopped his police car, and went to the rear of the building, where he saw smoke
coming out of the basement, ground floor and first floor windows. He says there was a
fierce fire burning in the basement near a number of drums of chemicals, and that this
was the source of the fire.
To what extent is the evidence of PC Johnson admissible at the trial?
Select one:
A. Only the smoke and the fact there was a fire.
B. He will be allowed to describe the smoke, the fierceness of the fire, and that there were
drums, but not that the drums contained chemicals or the source of the fire.
C. He will be allowed to describe the smoke, the fierceness of the fire, and the drums of
chemicals, but not the source of the fire.
D. All his evidence is admissible.
Answer: [B] Lay opinion evidence. Such a witness can give evidence of an opinion as a means
of conveying facts personally perceived by the witness (CEA 1972, s. 3(2)). The line should be
drawn at describing the fierceness of the fire. PC Johnson has no means of knowing what the
drums contained.
The correct answer is: He will be allowed to describe the smoke, the fierceness of the fire, and
that there were drums, but not that the drums contained chemicals or the source of the fire.
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You are instructed on behalf of Rose who wishes to bring proceedings against her former
solicitors. Rose alleges that the solicitors were negligent in their conduct of proceedings
brought against her by her mortgagees, such that her house was repossessed and sold at
an undervalue. The value of Rose’s claim is estimated at £24,000. Following precommencement
correspondence and disclosure it is apparent that there are likely to be a
number of substantial disputes of fact between the parties.
In respect of the commencement of the claim, which ONE of the following is CORRECT?
Select one:
A. The claim should be commenced in the County Court by Part 7 claim form.
B. The claim should be commenced in the High Court by Part 7 claim form.
C. The claim should be commenced in the County Court by Part 8 claim form.
D. The claim should be commenced in the High Court by Part 8 claim form.
ANSWER [A]. [A] Correct. The claim involves a substantial dispute of fact making the Part 8
procedure inappropriate (see CPR r. 8.1(2)(a)); the claim is a non-PI money claim the value of
which is not more than £100,000. PD 7A para. 2.1 and Article 4A of the High Court and County
Courts Jurisdiction Order each provide that such proceedings may not be started in the High
Court unless the value of the claim is more than £100,000. The claim should, therefore, be
started using the Part 7 procedure and in the County Court. [B] Wrong. This statement is wrong
because it refers to the High Court. [C] Wrong. This statement refers to Part 8. [D] Wrong. This
statement refers to Part 8. [WB rr. 7.2; 8.1 and paras 7.2.1 and 8.1.1; HC & CC Jurisdiction
Order 1991, art. 4A, WB Vol 2 para 9B-935] The correct answer is: The claim should be commenced in the County Court by Part 7 claim
form.
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In a claim for damages for breach of contract the claimant alleged in the particulars of
claim that the contract was made orally at a meeting at the defendant’s offices on a
specific date. The defence admits the parties entered into the contract, admits all the
terms relied upon by the claimant, denies breach, but alleges that the contract was partly
oral and partly evidenced in writing (attaching the alleged documents to the defence). The
value of the claim is stated to be £240,000. Giving full standard disclosure has been
estimated in the claimant’s disclosure report to be likely to cost £25,000.
At the first case management conference counsel for the defendant suggests that the parties
could dispense with disclosure altogether. Which one of the following is the most likely way that
the District Judge will deal with this submission?
Select one:
A. The starting point is that full standard disclosure should be provided. The submission is
likely to be rejected.
B. While standard disclosure is usual for breach of contract claims, as the defendant has
admitted most of the issues in this case the court is likely to dispense with disclosure.
C. The starting point is that the court should dispense with disclosure, and it is only if one
of the parties establishes a need for disclosure that a menu option disclosure order will be
made.
D. In accordance with the overriding objective the court is likely to dispense with
disclosure only in relation to the formation of the contract in this case.
Answer: [D] This will be a multi-track claim and is subject to menu option disclosure (CPR, r.
31.5). While dispensing with disclosure is the first type of order on the menu (at r. 31.5(7)(a)) it is
not the “starting point”, and nor is standard disclosure (again on the list at r. 31.5(7)(e)). Instead
the court applies the overriding objective in deciding what order to make regarding disclosure (r.
1.2 and Positec Power Tools (Europe) Ltd v Husqvarna AB [2016] EWHC 061 (Pat)). On the
facts there is no real issue about the contract, so an order dispensing with disclosure on that
issue is likely.
The correct answer is: In accordance with the overriding objective the court is likely to dispense
with disclosure only in relation to the formation of the contract in this case.
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Lauren has brought a County Court claim against Michael. After exchange of witness
statements Lauren applies for permission to amend her particulars of claim. At the
hearing Michael does not object to permission being granted, but asks that if Lauren is
given permission that he should also be given permission to amend his defence. The
District Judge grants permission to amend the particulars of claim and to amend the
defence.
Which one of the following is the most suitable order for costs to be included in the District
Judge’s order?
Select one:
A. Claimant’s costs.
B. Costs in the case.
C. Defendant’s costs in the case.
D. Claimant to pay the costs of and occasioned by the application for permission.
Answer: [D] The defendant is simply seeking a consequential direction to amend the defence.
This is a typical amendment application, and the usual order is that the party seeking to amend
(here Lauren, the claimant) must pay the costs of and arising from the amendment (opening
words of PD 17). The phrase for the same type of order used in the 6th entry in the table at PD
44, para 4.2 is “costs of and caused by”.
The correct answer is: Claimant to pay the costs of and occasioned by the application for
permission.
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Perry, who has brought a claim in negligence against Alfred, wishes to call Karen as a
witness at the trial. Karen is an hourly paid employee at a factory, and is refusing to
attend the trial. The trial is estimated to last for 3 days, and is due to start in 4 days’
time.
Which ONE of the following is CORRECT?
Select one:
A. Perry will have to offer or pay Karen a sum to cover Karen’s travelling expenses,
but there is no requirement to compensate her for time off work.
B. Perry needs permission to issue a witness summons.
C. A witness summons must be served no less than 14 days before the trial.
D. A witness summons will require Karen to attend court on the date specified in the
witness summons.
ANSWER: [B]. [A] Wrong. Conduct money covering both travelling and time off work must be
offered or paid when the witness summons is served (r 34.7). [B] Correct. Permission to issue a
witness summons is required in the circumstances provided by CPR r 34.3(2), which broadly
cover situations where the witness is being required to attend otherwise than at trial, or where it
is being issued late (less than 7 days before trial). APA Civil Procedure para 39.04. [C] Wrong.
Service is required not less than 7 days before trial (r 34.5(2)). [D] Wrong. A witness summons
is binding until the conclusion of the trial, not just a specified date (r 34.5(3)).
The correct answer is: Perry needs permission to issue a witness summons.
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Amy is about to issue a High Court claim against the police after spending 4 years in
prison. Her conviction was quashed after it was found the police officers in the case had
falsified evidence in order to secure the conviction. You have advised that compensatory
damages are likely to be about £150,000, and that there is a possibility of aggravated
damages of about £50,000. Your instructing solicitor is now speaking to you on the
telephone asking for your advice on completing the claim form.
Which one of the following statements is CORRECT?
Select one:
A. The claim form must contain a statement of value, which in this case would be
£200,000.
B. The claim form must contain a statement that Amy expects to recover more than
£25,000, that Amy expects to recover more than £100,000 and a statement of value, which
in this case would be £200,000.
C. The claim form must state that Amy is seeking aggravated damages of £50,000.
D. The claim form must state that Amy is seeking aggravated damages, and her grounds
for claiming aggravated damages.
ANSWER: [B] [A] Wrong. A claim form must contain a statement of the amount of money
claimed (CPR r.16.3(2)(a), but this is an incomplete answer and, therefore, wrong. It must also
contain a statement by reference to the case management track limits, here that Amy expects to
recover more than £25,000 (CPR r 16.2(1)(b)) and the justification for it being started in the High
Court (CPR r 16.3(5)) [A] is therefore incomplete. [B] Correct. A claim form must contain a
statement of the amount of money claimed: CPR r.16.3(2)(a). It must also contain a statement
by reference to the case management track limits, here that Amy expects to recover more than
£25,000, CPR r 16.2(1)(b), and the justification for it being started in the High Court: CPR r
16.3(5). [B] is therefore the right answer. [C] Wrong. While the claimant is required to specify the
remedy she seeks in the claim form, CPR, r 16.2(1)(b), there is no requirement to specify the
value of particular parts of the claim (for which, see r 16.3). [D] Wrong. While the claimant is
required to specify the remedy she seeks in the claim form, CPR, r 16.2(1)(b), the need to state
the grounds for claiming aggravated damages is a requirement for the Particulars of Claim rather
than the claim form: r 16.4(1)(c).
The correct answer is: The claim form must contain a statement that Amy expects to recover
more than £25,000, that Amy expects to recover more than £100,000 and a statement of value,
which in this case would be £200,000.
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On 1 December 2010 Tania entered into a contract to buy goods from Michelle. On 5
January 2011 Tania sold the same goods to Lynn. The goods were delivered directly to
Lynne on 1 February 2011. Lynne complained to Tania that the goods were not of
satisfactory quality, and Tania then made the same complaint to Michelle. Negotiations
were unsuccessful, and Lynne brought a County Court claim against Tania on 15
November 2016. Tania served a defence on 15 February 2017. The claim has been
provisionally allocated to the multi-track, and a case management conference has been
listed for 1 May 2017. You have been instructed on behalf of Tania to draft particulars of
an additional claim against Michelle.
Does Tania need permission to bring the additional claim?
Select one:
A. Yes, because Tania has already served her defence.
B. Yes, because the claim has already been provisionally allocated to a track.
C. Yes, because it is more than six years since the alleged breach.
D. No.
Answer: [A] This question is asking about permission to issue an additional claim under Part 20.
It is not asking about limitation. The rule is that permission is required to issue an additional
claim at any stage after the defendant files her defence (CPR, r. 20.7(3)), so the answer is [A].
The correct answer is: Yes, because Tania has already served her defence.
Which of the statements numbered (i) to (iv) about drawing up orders is/are WRONG? (i)
An order drawn up by a party must be checked by the court before it is sealed. (ii) The
order must bear the date on which it is given or made. (iii) All orders have to state the
name and judicial title of the judge who made it. (iv) First instance orders do not make
reference to procedures for appeals.
Select ONE of the following:
Select one:
A. (i) and (ii) only.
B. (i), (iii) and (iv) only.
C. (i) and (iv) only.
D. (ii) and (iii) only.
ANSWER: [B]. (i) is wrong because the court may or may not direct such checking (r 40.3(2)(a)).
(ii) Is correct (r 40.2(2)(a)). (iii) Is wrong, because it is only orders actually made by judges that
need to include name etc. Consent orders, default judgments etc are exceptions (r. 40.2(1)(c)).
(iv) Is wrong, because whether final or interim, first instance or second appeals, the appeal
court etc must be included (r 40.2(4)).
The correct answer is: (i), (iii) and (iv) only.
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