Civil Litigation MOCK SAQ 2
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A claimant sues a defendant in a complex matter for damages in the sum of £120,000. Each party decides, independently, that the claimant has a strong case on liability, but that the amount of the claimant’s damages might have been overstated.
Several months before the date of the trial which is listed for 3 days, the following events occur. First, the claimant serves on the defendant a Part 36 offer, in proper form, saying that the claimant will accept £100,000 in settlement of his claim. Secondly, the defendant serves on the claimant a Part 36 offer, in proper form, offering to pay the claimant £80,000 in settlement of his claim. Each of those offers is refused, and the claimant continues, to trial, the action in which he claims £120,000.
In order to clarify the issues between the parties the court orders a case management conference to take place on 3rd January 2012.
(a) State the latest date on which the court will give notice to the parties of the date of the case management conference. (1 mark)
27th December 2011 (date reflects 3 clear days not including the 2nd January 2012 which is a bank holiday)
(b) Assuming the parties are legally represented at the case management conference, outline the extent to which those legal representatives should be able to deal with any issues/questions that may arise in that hearing. (3 marks)
Case would have been allocated to the multi track.
Therefore the legal representatives must be familiar with the case and be able to field questions that are likely to be covered and have the authority to agree/make representations on the matters reasonably expected to arise.
Assume that the trial goes ahead and judgment is entered for the Claimant.
State the order/s for costs which could usually be expected to be made,under and by virtue of Part 36, and why that order will usually be made,in each of the following cases:
(c) The claimant recovers damages in the sum of £50,000. (4 marks)
The Claimant has failed to obtain a judgment more advantageous than the Defendant’s Part 36 offer of£80,000.
It is likely that:
CPR r44.3(2)(a)CPR r36.14(2) The Defendant would be ordered to pay the Claimant’s costs incurred up to the expiration of the relevant period
The Claimant would be ordered to pay the Defendant’s costs incurred from the date on which the relevant period expired and interests on those costs
(d) The claimant recovers damages in the sum of £90,000. (2 marks)
The Claimant has obtained a judgment more advantageous than the Defendant’s offer.
It is likely that;
The Defendant would be ordered to pay the Claimant’s costs of the action
You are asked to advise Holby Bank plc (“the bank”). The bank wishes to commence proceedings against Mr Joseph Galt (“Mr Galt”), for judgment in the sum of £150,000, being money owed by Mr Galt under a written guarantee in which he contracted to pay to the bank any monies owed to it by a private company called Galt Ltd.
The amount of £150,000 is due and payable by the company to the bank, and the company has recently gone into insolvent liquidation.
Mr Galt has responded to the bank’s letter of demand by alleging that the bank has orally released him from his liability under the guarantee.The bank denies this. Its denial is conclusively supported by the correspondence. In any event a term of the guarantee renders releases effective only if they are in writing.
The bank, however, anticipates two problems about the contemplated action. First, the bank has reason to believe that Mr Galt no longer resides at his usual or last known address, and reasonable steps taken by the bank have not revealed his current address. Secondly, the bank anticipates that Mr Galt will not co-operate with any aspect of the court’s procedure at any stage of the proposed action, unless it be to delay proceedings. You are accordingly asked to advise as follows:
(a) Given what the bank know about Mr Galt’s circumstances, what steps can the bank take to serve proceedings upon him? (2 marks)
The bank may apply for an order permitting service upon Mr Galt by a method or at a place not otherwise permitted by the CPR.
If proceedings are served upon Mr Galt, what steps could he take in the action if he wishes to defend the claim and by when should those steps be taken? (4 marks)
Mr Galt need take no action until the particulars of claim (POC) are served.
Mr Galt may acknowledge service within 14 days after service of the POC after which he may serve a defence within 28 days after service of the POC.
Alternatively Mr Galt can dispense with an acknowledgment of service and serve a defence within14 days after service of the POC
(c) Stating reasons, how should the bank proceed in the event of Mr Galt not taking all of those steps? (2 marks)
The bank may obtain judgment in default of acknowledgment of service or defence after the expiration of 14 days after service of the POC.
Or the bank may obtain judgment in default of defence if Mr Galt acknowledges service by fails to serve a defence within a period of 28 days after the service of POC
If Mr Galt ultimately serves a defence pleading the release from liability which he has alleged in the correspondence, is there any step which the bank might take in order to obtain judgment without having to incur the expense of a trial, and if so, what step might the bank take and why? (2 marks)
The bank may seek summary judgment against Mr Galt on the basis that if the bank’s case is as strong asthe facts suggest Mr Galt has no real prospect of successfully defending the claim
Your client is Alpha Ltd, which has for many years, sold goods to Beta Ltd. The two companies have fallen out with each other, and business relationships between them have ceased. At the time of the break down of their relationship, Beta Ltd owed Alpha Ltd a large sum as the price ofgoods sold by Alpha Ltd to Beta Ltd; and Beta Ltd has not paid any part of this debt.
Accordingly, Alpha Ltd has commenced an action against Beta Ltd for judgment in the amount of the unpaid sum. Beta Ltd has now served a defence and counterclaim in which it alleges that Alpha Ltd owes a large sum to it as damages for breach of contract. The relevant paragraph in the counterclaim states as follows. “The claimant has persistently breached many of the contracts which have been concluded between the parties over the last 5 years, as a result of which the defendant has suffered damages in the sum of £157,000”. No further details of the counterclaim are provided. Alpha Ltd deny that they are in breach of any of their contractual obligations.
(a) Giving reason/s state how Alpha Ltd can obtain more details of the nature of the counterclaim, a breakdown of the damages and how they have arisen. What initial steps should your client take in order to implement its right to obtain those details? ( 2 marks)
As the counterclaim etc are in dispute Alpha Ltd may obtain clarification of, or additional information in relation to those matters by serving a written request for that clarification or additional information on Beta Ltd.
(b) Outline how your client could enforce its right to obtain those details if the defendant does not respond at all to those initial steps and the procedural steps they would need to follow should they decide to adopt that approach. (3 marks)
Alpha Ltd may apply to the court for an order ordering Beta Ltd to provide the clarification and additional information sought in a stated period of time.
Alpha Ltd should file and serve an application notice on Beta Ltd.
A copy of the order sought should be attached to the application notice
(c) Assume that Beta Ltd do respond to those initial steps. What should they do if they object to the way/s in which Alpha Ltd seek to enforce its right to obtain those details? (2 marks)
Beta Ltd should inform Alpha Ltd of the objection promptly and within the time stated for the response given by Alpha Ltd
Assume that Alpha Ltd obtain details of the counterclaim. Amongst other allegations in the counterclaim is an allegation that some goods sold by Alpha Ltd were defective. As a result of this Beta Ltd have lost out on unusually lucrative contracts to sell those goods on and have made losses as a result.
(d) Assuming it is an issue in dispute, outline who bears the burden of proof in relation to the goods being defective (1 mark)
The legal burden is the obligation placed on a party to prove a fact in issue. Beta Ltd must therefore prove that the goods were defective.
(e) Outline further what Beta Ltd would have to demonstrate in order to be legally entitled to claim the losses flowing from their losing the unusually lucrative contracts. (2 marks)
Beta Ltd would have to demonstrate that the loss following from those lucrative contracts was either (i)damage that arose naturally following the breach of contract or (ii) was such damage as may reasonably be supposed to have been in the contemplation of the parties at the time the contract was made.
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