Civil Litigation MCQ Mock 2

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billsykes
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Civil Litigation MCQ Mock 2
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2013-04-01 10:31:48
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  1. You have just won a two-day multi track trial on behalf of the Claimant and are asked to advise on how the Court will decide the issue of costs. Which ONE of the following statements is CORRECT?

    [A]  The Court will order detailed assessment and the hearing will take place aftera short adjournment as the parties will have exchanged detailed bills of costsseven days prior to trial.

    [B]  The Court will order summary assessment if costs are not agreed and such costs proceedings must be commenced within three months of the judgment date.

    [C]  The Court has power to order a summary or detailed assessment of costs,but it will generally order detailed assessment if costs are not agreed.

    [D]  The Court will award costs in the case and list the hearing before a Costs Judge to determine the amount to be paid.
    [A] Wrong. It does not reflect the correct procedure for detailed assessment of costs.

    [B] Wrong. Costs will be decided on the basis of detailed assessment and any summary assessment would take place immediately after the judgment.

    [C] Correct. CPR r 44.7, the notes at WB 44.7.1, and PD44 para 13.2, provide for thebasis of assessment. As the case is not a fast track trial or a hearing of less than aday, there will be a detailed not summary assessment.

    [D] Wrong. The order would be for a final order for costs to be assessed if not agreed."Costs in the case" is an interim costs order, and not appropriate for the costs at trial.Further, detailed assessment starts when a notice of commencement is served, CPRr 47.6, not by the Court listing a detailed assessment hearing at the trial.
  2. Which of the following numbered (i) to (iv) are CORRECT methods of service on a Defendant company registered in England and Wales, where there has been no agreement as to the method of service and the Defendant company has notinstructed a solicitor or given an address for service?

    (i)  Sending the claim form by first class post to the company’s principal office.

    (ii)  Sending the claim form by first class post to any place of business of thecompany within the jurisdiction which has a real connection with the claim.

    (iii)  Leaving the claim form at the company’s principal office.

    (iv)  Personal service on a person holding a senior position within the company. Select ONE of the following:

    [A]  (i) and (ii) are the only correct methods of service.

    [B]  (ii) and (iii) are the only correct methods of service.

    [C]  (ii) and (iv) are the only correct methods of service.

    [D]  All of them are correct methods of service.
    • [A] Wrong.
    • [B] Wrong.
    • [C] Wrong.
    • [D] Correct.
  3. Which ONE of the following statements about applications for judicial review is WRONG?

    [A]  A Claimant seeking judicial review must have a sufficient interest in the matter to which the application relates.

    [B]  The Defendant can apply to set aside an order giving the Claimant permission to proceed with judicial review.

    [C]  Permission to proceed with judicial review should be granted if there is an arguable case for granting the relief claimed.

    [D]  A claim for judicial review is made using a Part 8 claim.
    B] Correct. Generally the papers are considered by a Judge without a hearing. Sime paragraph 45.57 page 542..

    [Answer [B] is a wrong statement (and so is the answer that should be selected)because CPR r 54.13 says that neither the defendant nor any other person served with a judicial review claim form may apply to set aside the order giving permission to proceed. See Sime at para 45.59 on page 542.]
  4. Which ONE of the following statements about applications to disapply the primary limitation period under s.33 of the Limitation Act 1980 in personal injury claims is WRONG?

    [A]  The application may be determined by the Court prior to a trial on any otherissues.

    [B]  An order under s.33 can be made in a claim that has been allocated to thefast track.

    [C]  The application can only be heard by a Circuit Judge or a High Court Judge.

    [D]  When hearing the application the Court may hear oral evidence.
    [C] Correct.

    [Answer [A] is a correct statement, as s. 33 points can be taken as preliminary issues or on applications to strike out, so should not be selected. [B] is also correct,because s. 33 applies to all personal injury claims, and is not dependent on track allocation. Answer [C], on whether a district judge has jurisdiction, depends on whether the limitation point is being taken on an interim application (for which the district judge always has jurisdiction) or as a trial issue, in which event the district judge has jurisdiction provided the claim does not exceed £25,000 (PD 2B, para11.1). So district judges can have jurisdiction, [C] is a wrong statement, and is the answer to select. On answer [D], oral evidence would be unusual on a striking out application, but perfectly normal on the trial of a preliminary issue, so the statement in [D] is correct, so this answer should not be selected.]
  5. A District Judge in the County Court is considering her case management powers inrelation to a case before her. Which of the following numbered (i) to (iv) is/are NOT within her case management powers?

    (i)  The power to consolidate proceedings.

    (ii)  The power to adjourn or bring forward a hearing.

    (iii)  The power to direct a separate trial of any issue.

    (iv)  The power to order the parties to agree on a settlement. Select ONE of the following:

    [A]  (iv) is the only option not within her case management powers.

    [B]  (i) and (ii) are the only options not within her case management powers.

    [C]  (iii) and (iv) are the only options not within her case management powers.

    [D]  None of the options are within her case management powers.
    [A] Correct. Because (iv) is not within her powers.
  6. Andy was injured in an accident at work and is now the Claimant in a personal injuries claim. His employer is the Defendant. The accident was witnessed by David.David provided a witness statement on behalf of Andy, which has been served on the Defendant. David has now moved out of the area and has told Andy that he is not prepared to attend Court to give oral evidence. Andy has applied to the Court for a witness summons to be issued.

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

    (i)  David must attend Court to give oral evidence if the witness summons is served on him at least seven days before the date of the trial.

    (ii)  David must, at the time of service of the witness summons, be offered or paid a sum reasonably sufficient to cover his expenses in travelling to and from Court.

    (iii)  David cannot be compelled to give evidence in civil proceedings.

    (iv)  David is not entitled to the costs of travelling to and from the Court and must make an application for such costs at the end of the trial.

    Select ONE of the following:

    [A]  (i) and (iv) are the only correct statements.

    [B]  (iii) is the only correct statement.

    [C]  (i) and (ii) are the only correct statements.

    [D]  (i) is the only correct statement.
    [A] Wrong. (iv) is a wrong statement. The offer of expenses must be made at the time that the witness summons is served: see CPR rr 34.2 – 34.7.

    [B] Wrong. (iii) is a wrong statement. A person served with a witness summons is compelled to give evidence

    [C] Correct. (i) is a correct statement. A person served with a witness summons must attend Court provided that the summons was served on him at least 7 days before the hearing (CPR rr 34.2-34.7). (ii) is a correct statement. A person served with a witness summons must be offered reasonable expenses.

    [D] Wrong. This statement does not mention (ii).
  7. Jon entered into a contract with Sonia for the sale of 30 crates of machinery. The agreed price was £1,500 a crate. It was a term of the contract that the crates would be delivered to Sonia’s warehouse on 16 November 2006. The crates were not delivered on that date or at all. Sonia had intended to use the machinery to fulfil along-standing contract she had with Rebecca for the supply of machine parts on 3January 2007. Due to the non-delivery of the machinery by Jon, Sonia was unable to supply the machine parts to Rebecca and so lost the profits of such a sale. Sonia wishes to claim such losses and additional expenses from Jon. Sonia who is 45 years of age has today sought advice from you as she understands she is ‘out of time’. She would like to know the date for the expiry of the limitation period in respect of her claim against Jon. Which ONE of the following dates is the CORRECT date on which the limitation period expired?

    [A]  3 January 2010.

    [B]  16 November 2009.

    [C]  16 November 2012.

    [D]  3 January 2013. ANSWER
    [A] Wrong. Because time runs from the date on which the cause of action accruedand not from the date when some loss resulted, and the limitation period is six yearsin contract.

    [B] Wrong. Because the limitation period for contract claims is six years (s.5Limitation Act 1980).

    [C] Correct. The limitation period is six years from the date on which the cause ofaction accrued. The cause of action accrued on the non-delivery of the crates ofmachinery on 16 November 2006.

    [D] Wrong. The limitation period is six years from the date on which the cause ofaction accrued. The cause of action accrued on the non-delivery of the crates ofmachinery on 16 November 2006.
  8. Liam has instructed solicitors to act for him in a claim against Jean for breach ofcontract. He is claiming £24,000 in loss and damages. The Particulars of Claimhave been served, and the time for filing and serving a Defence has not yet expired.Jean decides to make Liam an offer of £20,000 to settle the matter. You are asked to advise about the conditions which must be satisfied in this case inorder for the offer to have the costs consequences set out in CPR Part 36.

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

    (i)  In order for the offer to have the costs consequences set out in CPR Part 36,the offer must be made in writing.

    (ii)  In order for the offer to have the costs consequences set out in CPR Part 36,Jean must state whether the offer of £20,000 takes into account any counterclaim.

    (iii)  In order for the offer to have the costs consequences set out in CPR Part 36,the offer must state that it is being made ‘without prejudice’. Select ONE of the following:

    [A]  (i) is the only correct statement.

    [B]  (i) and (ii) are the only correct statements.

    [C]  (i) and (iii) are the only correct statements.

    [D]  (iii) is the only correct statement.
    [A] Wrong. This statement does not mention (ii).

    [B] Correct. (i) and (ii) are the only correct statements. By CPR r 36.2(2)(a) a Part 36offer must be made in writing, and by CPR r 36.2(2)(e) a Part 36 offer must statewhether it takes into account any counterclaim. Sime 42.06.

    [C] Wrong. (iii) is wrong. CPR r 36.2(2) does not require that a Part 36 offer statesthat it is being made ‘without prejudice’.

    [D] Wrong. (iii) is wrong. CPR r 36.2(2) does not require that a Part 36 offer statesthat it is being made ‘without prejudice’.
  9. Lydia is a lifelong fan of a famous band called The Canaries. She entered into a contract with The Canaries under which they agreed that they would perform at her60th birthday party. A week before the party The Canaries informed Lydia that they did not intend to perform at her party after all as they had been asked to perform at a more prestigious event in London on the same evening. Lydia is furious and wishes to bring a claim against The Canaries.

    Which ONE of the following statements is CORRECT?

    [A]  Lydia may obtain an order for specific performance of the contract, forcing The Canaries to perform at her party.

    [B]  Lydia may be able to recover exemplary damages due to the cynical nature ofThe Canaries’ breach of contract.

    [C]  Lydia may be able to recover aggravated damages due to the cynical nature of The Canaries’ breach of contract.

    [D]  Lydia may be able to recover damages for her disappointment resulting from The Canaries’ actions.
    [A] Wrong. Lydia could not obtain an order for specific performance of the contract because it is a contract involving personal services (See Remedies Manual 15thedition edited by David Emmet at 8.2.3.4).

    [B] Wrong. Exemplary damages are not recoverable for breach of contract (SeeRemedies Manual 15th edition edited by David Emmet at 5.6).

    [C] Wrong. Aggravated damages are not recoverable for breach of contract (SeeRemedies Manual 15th edition edited by David Emmet at at 6.5).

    [D] Correct. Lydia could argue that a major purpose of her contract with The Canaries was to provide enjoyment and that she is therefore entitled to modest damages to reflect her disappointment (See Remedies Manual 15th edition edited by David Emmet at 5.5).
  10. Which ONE of the following statements about the application of the Personal InjuryPre-Action Protocol is CORRECT?

    [A]  It applies to all personal injury claims, even if they include secondary claims for something else such as property damage.

    [B]  It applies only to personal injury claims which are for a total value of more than£25,000, including any secondary claims.

    [C]  It applies only to those personal injury claims where there are no secondary claims for property damage.

    [D]  It applies only to personal injury claims which are for a total value of £50,000 or more.
    [A] Correct. Correctly summarises para. 2.2. By Personal Injury Pre-Action Protocol para 2.2, that Protocol is intended to apply to all claims which include claims forpersonal injury except those covered by the Clinical Disputes and Disease and Illness Protocols. It applies to the entirety of a claim which includes a personal injury claim. By para 2.3 it is intended primarily to apply to fast track cases, but by para 2.4is equally appropriate to higher value claims.
  11. Claire Hope sues Barry Haynes for negligent driving. In his Defence, Barry statesthat the accident was caused by the negligent driving of Claire, but does not give anyparticulars. Claire’s solicitors wrote a very brief letter to Barry’s solicitors, thecomplete text of which was as follows:

    27th November 2012

    Dear Sirs

    Re Gladbury County Court Claim No. 12GL 54676

    Claire Hope and Barry Haynes

    Request under CPR Part 18

    With respect to your client’s Defence, please tell us in what way you say our client was negligent.

    Yours faithfully,

    There has been no response and Claire’s solicitors wish to apply to the Court for an order for further information.

    Which ONE of the following statements is WRONG?

    [A]  The request should have been in the prescribed form and not by letter.

    [B]  The request should have specified a date for a response.

    [C]  Requests should be made as far as possible in a single document.

    [D]  Any request must be concise and strictly confined to matters which are necessary and proportionate to enable Claire to prepare her own case or understand the case she has to meet.
    [A] Correct.
  12. David (a pedestrian) was hit by a car driven by Alice. He has brought proceedings against her. Alice blames Marianne, who was riding a motorcycle, for causing the accident by swerving into her path. Alice has brought a Part 20 additional claim against Marianne. Marianne blames Keanu, who was driving a milk float, for causing the accident by turning right in front of her without signalling, so causing her to swerve. You are asked to advise what Marianne should do now.

    Which ONE of the following statements is CORRECT?

    [A]  Await the outcome of David’s action against Alice before doing anything.

    [B]  File a Defence to Alice’s Part 20 additional claim and bring a Part 20additional claim against Keanu.

    [C]  File a Defence to Alice’s Part 20 additional claim citing Keanu’s bad driving,but without otherwise involving him in any way.

    [D]  Start a new, separate claim against Keanu.
    [B] Correct. The four options are mutually exclusive and so only one can be correct.That one is [B]. CPR rr 20.2 and 20.7 allow a person in the position of Defendant tobring a claim for contribution, indemnity or some other remedy against someone notcurrently party to the litigation. While [A], [C] and [D] are all theoretically possible, thepurpose of Part 20 is to save costs and ensure consistent outcomes making [A] and[D] unwise. [C] could result in Alice ending up holding the liability. Syllabus 5
  13. David is studying at home for his final medical exam in ten days’ time. His neighbour,Mike, who is well aware of this, is having a swimming pool and gym built onto his property, in consideration for which he has paid SB Builders a one-off fixed fee. SB Builders are working from 8.30 a.m. until 8.30 p.m. from Monday to Saturday. The work involves the use of pneumatic drills, cement mixers and a lot of hammering, and is likely to last for another two to three weeks.

    Although no damage is being caused to his home, David wishes to apply for an injunction prohibiting the work, so he can revise in peace for his exams. He cannot study elsewhere as he is solely responsible for the care of an elderly relative who lives in his spare room at home.

    Which ONE of the following statements is CORRECT?

    [A]  David is unlikely to get an injunction because the balance of convenience is clearly in Mike’s favour.

    [B]  In deciding whether to grant an injunction, the Court will take into account the merits of the case, because the injunction application is likely to dispose finally of the action.

    [C]  David would never get an injunction in these circumstances.

    [D]  David is likely to get an injunction because the Court will always seek to preserve the status quo.
    [B] Correct.
  14. Raymond is an accountant in sole practice. His former employee, Andrew, also an accountant, left to set up a new practice in partnership with Bobby. Since then many of Raymond’s clients have been taking their business to Andrew and Bobby’s new firm, and Raymond cannot locate some of their files. Raymond thinks that Andrew must have taken them when he left.

    Raymond has obtained a search order allowing him and Juno, his solicitor, to search Andrew and Bobby’s offices, under the supervision of John, a solicitor. A file is found dealing with the affairs of one of Raymond’s former clients, Mrs Murray. Mrs Murray runs a child-minding service. Andrew tells John that the file has been given to him by, and belongs to, Mrs Murray. Raymond tells John that the file belongs to him and Andrew has taken it.

    Which ONE of the following statements CORRECTLY describes what should happen to the file?

    [A]  John must deliver the file to the Court for safe keeping as soon as possible.

    [B]  Raymond and Juno may take it away to read and copy.

    [C]  The file must be given to Andrew and Bobby’s solicitor, Tina, who must keep it until the Court decides who owns it.

    [D]  John must take the file and keep it until the Court decides who owns it.
    [C] Correct. The answers are mutually exclusive and so only one can be correct.That one is [C] on the basis of PD 25A para 7.5(4).
  15. Subject to any steps taken by the Defendant, in which ONE of the following types of claim is default judgment available?

    [A]  Any claim whilst the Defendant’s application for summary judgment is pending and has not been disposed of.

    [B]  A claim for an injunction.

    [C]  Any claim brought under the CPR Part 8 procedure.

    [D]  A claim for delivery of goods subject to a Consumer Credit Act 1974agreement.
    [B] Correct. Default judgment is not excluded in a claim for an injunction, but it is in the others. See CPR rr 12.2 and 12.3.
  16. In relation to the categories of general damages and special damages in a personal injury claim, which ONE of the following statements is WRONG?

    [A]  Damages for pain and suffering and loss of amenity are treated as an item of general damages.

    [B]  Damages for past loss of earnings are treated as an item of general damages.

    [C]  Damages for handicap on the labour market (“Smith v Manchester”damages) are treated as an item of general damages.

    [D]  Damages for the cost of past physiotherapy treatment are treated as an item of special damages.
    [A] Wrong. General damages represent the loss to the Claimant that cannot be precisely quantified. Following this definition, the statements in [A] and [C] are correct,so they are wrong answers to the questions posed.

    [B] Correct. General damages represent the loss to the Claimant that cannot be precisely quantified. The statement in [B] is therefore wrong.

    [C] Wrong. General damages represent the loss to the Claimant that cannot be precisely quantified. Following this definition, the statements in [A] and [C] are correct,so they are wrong answers to the questions posed.

    [D] Wrong. Special damages represent those losses which are strictly measurable in money and capable of precise calculation. The statement in [D] is therefore correct,so is also a wrong answer to the question posed.
  17. Janelle trips over a paving stone. Her claim for pain, suffering and loss of amenity amounts to £1,500 and her claim for special damages is for £3,000.

    Which ONE of the following will be the NORMAL track for this claim?

    [A]  The fast track.

    [B]  The multi track.

    [C]  The small claims track.

    [D]  There is no normal track for this type of claim.
    [A] Correct. The small claims track is the normal track for any claim for personal injuries where the value of any claim for damages for personal injuries is not more than £1,000. In this case the damages for personal injuries amount to £1,500 and therefore it would normally be allocated to the fast track.
  18. Which ONE of the following is NOT a relevant matter that is required to be includedin the evidence in support of an application for an interim payment?

    [A]  The amount sought by way of an interim payment.

    [B]  The items or matters in respect of which the interim payment is sought.

    [C]  The amount that is likely to be awarded at the final Judgment.

    [D]  The value of the Part 36 offer made by the Defendant to the Claimant.
    [D] Correct. [D] is not a relevant matter included in PD 25B and the value of any Part36 offer would not be “included in the evidence in support” of an application for an interim payment (even if the existence or not of such a Part 36 offer may be something which is raised by the Judge at the hearing).
  19. Howie has commenced proceedings against Sales (Gladbury) Ltd for damages for breach of contract. Howie wishes to make an application against Rhona, who is not a party to the proceedings, for the disclosure of certain records, which would save costs in the proceedings against Sales (Gladbury) Ltd.

    Which ONE of the following statements is CORRECT?

    [A]  Howie may only do so if Rhona is likely to become a party to the proceedings.

    [B]  Howie may not do so because Rhona is not a party to the proceedings.

    [C]  Howie may not do so as proceedings have already started.

    [D]  Howie may do so if the documents he seeks are likely to support his case or adversely affect the case of Sales (Gladbury) Ltd and disclosure is necessary in order to dispose fairly of the claim or to save costs.
    [D]  Correct. See CPR r 31.17(3).


    [A] Wrong. See CPR r 31.17. This is the test for pre-action disclosure underCPR r 31.16.
  20. Which of the following statements numbered (i) to (iii) about striking out and discontinuance is/are CORRECT?

    (i)  The Court may exercise its power to strike out on an application by a party oron its own initiative.

    (ii)  A claim may be struck out where it sets out no facts indicating what the claim is about.

    (iii)  Following discontinuance and unless the Court orders otherwise, the Claimant is liable for the Defendant’s costs up to the date of service of the notice of discontinuance. Select ONE of the following:

    [A]  (i) is the only correct statement.

    [B]  All of the statements are correct.

    [C]  (iii) is the only correct statement.

    [D]  (i) and (ii) are the only correct statements.
    [B] Correct. All three statements are correct and can be found in Sime see below:

    • (i) appears in para 22.01.
    • (ii) appears in para 22.17.
    • (iii) appears in para 22.44.
  21. Alison left her job as a mortgage sales representative for Raimi Building Society(“Raimi”) on the grounds of ill-health after she was violently attacked by a customer whose mortgage application she had declined. She is suing Raimi for her physical and psychological injuries. At present she is in receipt of Employment and Support Allowance from the Department of Work and Pensions (DWP) because she is unable to work due to her fragile mental state. Employment and Support Allowance is a‘recoverable benefit’ that must be repaid to the DWP if Alison’s claim is successful.

    Which ONE of the following statements CORRECTLY states how the Employment and Support Allowance payments received by Alison will be dealt with?

    [A]  The money received by Alison as Employment and Support Allowance must be deducted by her from any claim for damages she makes against Raimi.

    [B]  The money received by Alison as Employment and Support Allowance will be deducted from her pay if and when she returns to work.

    [C]  If Raimi is found liable, it must repay to the DWP any payment Alison has received as Employment and Support Allowance. Such payment must be deducted from the sums Raimi may be liable to pay Alison for her loss of earnings.

    [D]  If Raimi is found liable, it must repay to the DWP any payment that Alison has received as Employment and Support Allowance. However, such payment will not be deducted from any sums Raimi may be liable to pay Alison for herloss of earnings.
    [C] Correct. Such benefits must be repaid by the Defendant to the state and a rededucted from the appropriate head of damages as otherwise double recovery would result (See Remedies Manual 15th edition edited by David Emmet at 11.17).
  22. Which ONE of the following statements about Conditional Fee Agreements (CFAs) is WRONG?

    [A]  Legal representatives are required to disclose to the opposing party that they are acting under a CFA if they intend to recover a success fee.

    [B]  Subject to insurance, a party funded by a CFA may still be liable to pay the other side’s costs.

    [C]  Parties are obliged to disclose to the other side details of their success fee before the case is determined.

    [D]  In cases where there is a CFA between the client and the solicitor, and Counsel is then instructed, there will generally be a second CFA between the solicitor and Counsel.
    [C] Correct.
  23. Supaglass Ltd (“Supaglass”) has recently obtained a County Court judgment against Promokid Ltd (“Promokid”) in the sum of £560. Supaglass is aware that Promokid is still trading as a company, has a company bank account in credit with the NatWest Bank (“NatWest”) and owns a small office in England from which it operates its business. Supaglass has not received payment following judgment and wants to commence enforcement proceedings against Promokid to recover the judgment debt as soon as possible.

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

    (i)  Supaglass could apply to the County Court for an attachment of earnings order whereby Promokid will be ordered to pay the debt from its companybank account at NatWest.

    (ii)  Supaglass could apply to the County Court for a charging order relating toany property owned by Promokid which, if obtained, would lead to an automatic order for sale of any property to satisfy the judgment debt.

    (iii)  Supaglass could apply to the County Court for a third party debt order against the bank, supplying evidence to the Court that Promokid has an account in credit at NatWest from which payment of the judgment debt can be made.

    (iv)  Supaglass could apply to the County Court for a warrant of execution. The County Court will then transfer the Judgment to the High Court for enforcement by an enforcement officer who will seize goods to satisfy the judgment debt. Select ONE of the following:

    [A]  None of the statements are correct.

    [B]  (i) and (ii) are the only correct statements.

    [C]  (iii) and (iv) are the only correct statements.

    [D]  (iii) is the only correct statement.
    [A] Wrong.

    [B] Wrong. (i) is an inappropriate method of enforcement against a company as the company has no employer or salary to attach the order to, and there is no suggestion that the Judgment was to be paid in instalments and that the debtor has defaulted ona payment (CCR Ord 27). Regarding (ii), as Supaglass is seeking immediate payment, this is not the most appropriate method of enforcement as it does not provide the judgment creditor with an immediate right to any money and separate Part 8 proceedings (CPR r 73.10)would need to be brought to enforce the charging order by sale.

    [C] Wrong. Regarding (iv), although Supaglass could apply to the County Court for a warrant of execution, the Judgment would not be transferred to the High Court for enforcement. As the value of the judgment debt is only £560, it must be enforced inthe County Court as it is less than £600 (High Court and County Court Jurisdiction Order 1991, art 8).

    [D] Correct. Given that Promokid has a bank account in credit, the simplest and most effective method of enforcement would be to apply for a third party debt order against the bank under CPR Part 72. The first stage is to apply without notice for an interim order under CPR r 72.3. Evidence that the Judgment debtor had a bank account which was in the past in credit needs to be furnished when making the application(PD 72 para 1.3).
  24. QUESTION 24 In settlement of a claim brought by Green, arising out of Negus’ negligent valuation of a painting, Negus agrees that he will waive his commission on the sale of another painting owned by Green. Costs are to be the subject of a detailed assessment if not agreed. You consider that a Tomlin order would be the most appropriate method of recording the terms of settlement.

    Which ONE of the following statements about what you should include in the orderand what you should include in the schedule to the order is CORRECT?

    [A]  Waiver and costs should both be included in the order.

    [B]  Waiver and costs should both be included in the schedule.

    [C]  Waiver should be included in the order; costs should be included in the schedule.

    [D]  Costs should be included in the order; waiver should be included in the schedule.
    [D] Correct. Costs need to be included in the order if the Court is to be able to carry out a detailed assessment; the waiver of commission has to be included in the schedule – the Court has no jurisdiction to order this and the terms of settlement go beyond the ambit of the original dispute: see in respect of Tomlin orders White Book commentary 40.6.2.
  25. Grace has issued a claim against Henry. Both parties are represented by solicitors,and Henry’s solicitors have confirmed they are authorised to accept service.

    Which ONE of the following is the CORRECT place for Grace to serve the claimform?

    [A]  Henry’s current home address.

    [B]  Henry’s usual residence.

    [C]  Henry’s last known residence.

    [D]  Henry’s solicitors’ address.
    [A] Wrong. Where a solicitor acting for the Defendant has notified the Claimant inwriting that the solicitor is instructed to accept service, the claim form must be servedat that solicitor’s business address. This is not that address. See CPR r 6.7(1).

    [B] Wrong. Where a solicitor acting for the Defendant has notified the Claimant inwriting that the solicitor is instructed to accept service, the claim form must be servedat that solicitor’s business address. This is not that address. See CPR r 6.7(1). *

    [C] Wrong. Where a solicitor acting for the Defendant has notified the Claimant inwriting that the solicitor is instructed to accept service, the claim form must be servedat that solicitor’s business address. This is not that address. See CPR r 6.7(1).

    [D] Correct. Where a solicitor acting for the Defendant has notified the Claimant inwriting that the solicitor is instructed to accept service, the claim form must be servedat that solicitor’s business address. See CPR r 6.7(1).
  26. Craig has lost at trial against David. The case was brought in Manchester County Court, allocated to the multi track and tried by Her Honour Judge Evans. Craig wishes to appeal, and has received the necessary permission from HHJ Evans on the basis that an important point of law has been raised. Which ONE of the following will hear the appeal?

    [A]  A High Court Judge.

    [B]  The Divisional Court of the Queen’s Bench Division.

    [C]  The Court of Appeal.

    [D]  The Supreme Court.
    [C] Correct. The four options are mutually exclusive so only one can be correct. That one is [C] from PD 52A, para 3.5, Table 1.
  27. Laura fell off a horse she was riding at a riding school and suffered a broken arm and leg. The riding school was aware that the horse was dangerous and did not inform Laura of this nor provide adequate training or safety clothing. Laura wants to issue proceedings for her personal injuries.

    Which ONE of the following statements is CORRECT?

    [A]  As this is a personal injury claim it must be issued in the County Court if the value of the claim is less than £50,000.

    [B]  If this claim is expected to be worth more than £25,000, the proceedings must be issued in the High Court.

    [C]  This is a personal injury claim and therefore proceedings may not be started in the High Court whatever the value of the claim.

    [D]  If this claim is worth between £25,000 and £50,000, there is a choice as to whether to issue in the County Court or the High Court.
    [A] Correct. High Court and County Court Jurisdiction Order 1991, art 9: Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more.

    • [B] Wrong. This is a personal injury claim and, as such, is governed by High Court
    • and County Court Jurisdiction Order 1991, art 9 and must be commenced in the
    • County Court if the value is under £50,000.

    • [C] Wrong. Personal injury claims of over £50,000 may be started in the High Court
    • (PD 7A, paras 1 and 2.2).

    • [D] Wrong. There is no choice here. See High Court and County Court Jurisdiction
    • Order 1991, art 9.
  28. You have been briefed to appear in a case on behalf of Gillian who has brought a personal injury claim following a fall from a ladder whilst at work last year. You were given the brief when it was returned by another barrister, who was unavailable to take the trial due to ill-health. You discover that Gillian’s case has been pleaded only in negligence, when her case would be stronger if allegations of breaches of duties under the Work at Height Regulations (“the Regulations”) could also be relied upon.The trial is due to start on Monday next week. You are considering whether you can or should amend Gillian’s Particulars of Claim to plead a breach of the Regulations.

    Which ONE of the following statements is CORRECT?

    [A]  It is too late to amend Gillian’s Particulars of Claim, so you will have to argue the case in negligence only.

    [B]  You can argue the point about breach of the Regulations provided you put it in your skeleton argument.

    [C]  You can seek the Court’s permission to amend, and the Court will decide whether to grant permission on the basis of the overriding objective.

    [D]  You can seek the Court’s permission to amend, but the Court will only give permission if the trial is not delayed.
    [C] Correct. The answers are mutually exclusive and so only one can be correct.That one is [C]; the rule is that a party can only argue at trial what has been pleaded in its statement of case, so [B] is wrong (Sime 13.42). Under CPR r 17.1(2) there areno formal restrictions on when or in what circumstances a Court can allow amendment, so [A] and [D] are wrong. [C] is correct; there is a full explanation in Sime chapter 15.
  29. Following a contested trial, Norman has been awarded damages of £50,000 from Sharon for a breach of contract. Norman had claimed damages of £100,000.

    Which ONE of the following statements about Norman’s entitlement to costs from Sharon is CORRECT?

    [A]  As Norman has succeeded at trial, the Court must award him the entirety of hiscosts.

    [B]  In deciding what order to make about costs, the Court must have regard to the conduct of both Norman and Sharon.

    [C]  The Court can only order Sharon to pay part of Norman’s costs, as Norman only succeeded on part of his claim.

    [D]  In deciding what order to make about costs, the Court can have regard to Norman’s conduct after the issue of proceedings, but cannot have regard to his conduct prior to the issue of proceedings.
    [B] Correct.
  30. Chester has issued proceedings against Denzil claiming damages for personal injuries arising out of a road traffic accident. You have advised on quantum, and your view is that the damages for pain, suffering and loss of amenity are likely to be about £2,500, and that the special damages claim will be an additional £1,500. A Defence has been filed denying liability and disputing quantum. Allocation Questionnaires have 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?

    [A]  Automatic directions as laid down by the CPR must be complied with, startingw ith disclosure of documents.

    [B]  The claim will be listed for a pre-trial review.

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

    [D]  The claim will be allocated to the fast track.
    [D] Correct. After Allocation 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 £2,500. While the small claims track is typically for claims with a value under £5,000, there is an exception where the value of the claim for pain, suffering and loss of amenities (PSLA) is for £1,000 or more (r 26.6(1)), so this claim should be allocated to the fasttrack. Therefore answer [D] is correct.
  31. Edward was involved in a road traffic accident with Sarah. Sarah has served the claim form and Particulars of Claim on Edward. She alleges that the accident was caused by Edward’s negligence, in that he drove out in front of her at a junction without giving way. Sarah is claiming £600 for the repair of damage to the front passenger door of her car and £500 for the repair of damage to the rear passenger door, in accordance with an invoice from a local garage.

    Edward admits that he failed to give way at the junction and that the accident was caused by his negligence. He believes that the sums of £600 and £500 are reasonable for the work described in the invoice, but that his car collided with only the rear door of Sarah’s car and that the front door was already damaged. Edward is now drafting a Defence.

    Which ONE of the following statements is CORRECT?

    [A]  Edward should admit that the accident was caused by his negligence and require Sarah to prove that the repairs cost £1,100.

    [B]  Edward should deny that the accident and the damage were caused by his negligence.

    [C]  Edward should admit that the accident was caused by his negligence and also the claim of £500 for the repair of the rear door, and deny that the damage to the front door was caused by the accident because it was already damaged.

    [D]  Edward should require Sarah to prove that the accident and the damage to both doors were caused by his negligence.
    [C] Correct. In accordance with CPR r 16.5 the Defendant must state which of the allegations he admits, which he denies (with reasons) and which he is unable to admit or deny but requires the Claimant to prove. Here Edward admits liability,causation and quantum for the rear door, but denies, with a reason, causation for the front door.

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