Workshop 20

MCQs/SBAs (with answers)

Question 1

Mason and Billy entered into a contract. Mason instructs you that Billy breached the
contract and Mason now wishes to sue Billy for £101,000. The claim is
straightforward, with no difficult legal issues or procedures involved, does not
include a claim for personal injury and raises points which are unimportant to anyone
except Mason and Billy themselves.

Mason wants you to advise on the court in which he should issue his claim.

Which of the following is the correct advice to give to Mason in the circumstances?

[A] The claim is worth more than £100,000 so Mason must issue it in the High
Court.

[B] The claim does not involve any personal injury, so Mason must issue it in the
County Court.

[C] The claim is worth more than £100,000 so Mason has a choice whether to
issue it in the High Court or the County Court.

[D] The claim is worth more than £100,000, but as it is straightforward and of no
importance to the public in general, Mason must issue it in the County Court.

Answer:
[C] This is the CORRECT advice.
PD 7A para 2.1 applies as the claim does not include any damages for personal injury.
This states that where the value of the claim is more than £100,000, proceedings may
be started in the High Court. Therefore, Mason has a choice as to where to start his
claim as it is over the financial threshold of £100,000.
The factors which are set out in PD 7A para 2.4 would then be applied, but the
important point is that there is a choice; Mason does not have to issue it in the High
Court because he is over the £100,000 threshold.
Incorrect Answers:
[A] This statement is incorrect.
PD 7A para 2.1 applies as the claim does not include any damages for personal injury. This
states that where the value of the claim is more than £100,000 proceedings may be started
in the High Court. It does not provide that proceedings must be started in the High Court.
See further, PD 7A para 1, which sets out the general rule that proceedings over which both
the High Court and the County Court have jurisdiction may be started in the High Court or
the County Court.

[B] This statement is incorrect.

PD 7A para 2.2 states that proceedings which include a claim for damages in respect of
personal injury must not be started in the High Court unless the value of the claim is £50,000
or more.
PD 7A does not provide that all non-PI claims must be started in the County Court; the
inclusion of damages for personal injury in a claim does not alone determine where
proceedings should be started (what this does do is change the jurisdictional limit below
which proceedings cannot be started in the High Court from £100,000 to £50,000).

[D] This statement is incorrect.

PD 7A para 2.1 applies as the claim does not include any damages for personal injury. This
states that where the value of the claim is more than £100,000, proceedings may be started
in the High Court. Therefore, Mason has a choice as to where to start his claim as it is over
the financial threshold of £100,000.
The factors which are set out in PD 7A para 2.4 would then be applied. Here, the question is
very heavily geared towards the conclusion that the County Court is probably the appropriate
place to start proceedings, as the value of the claim is just above the threshold, the claim is
said to be “straightforward” (i.e. the facts, legal issues, remedies or procedures involved are
not difficult to understand) and the outcome of the claim is of no importance to the public in
general, but the important point is that there is a choice; Mason does not have to issue it in
the County Court because of these factors being applicable here.
Question 2

In March 2013, Sadiq bought a newly built house from Faber Homes Ltd. In March
2021, Sadiq first noticed cracks appearing in the wall. He called in an expert surveyor
who, after a thorough investigation, found that the house had been negligently built.
She advised that there were now serious subsidence issues (of which the cracks were
simply a symptom) and that the subsidence issues were “hidden” before March 2021.
The expert surveyor handed Sadiq a copy of her report on 1 April 2021.

Sadiq now wishes to bring a claim in negligence against Faber Homes Ltd.

Which of the following statements is correct on these facts?

[A] Sadiq cannot bring a claim because he is out of time: this is a claim for
negligence and 6 years have already passed since the house was built.

[B] Sadiq can bring a claim: he is not out of time. Sadiq has three years from the
earliest date on which he had the requisite knowledge for bringing an action
for damages in respect of the relevant damage and the right to bring such an
action.

[C] Sadiq cannot bring a claim because he is out of time. He is not entitled to rely
on the special time limit for negligence actions where facts relevant to the
cause of action are not known at the date of accrual under the Limitation Act
because this only applies to cases where the claimant has suffered personal
injury, which Sadiq has not.

[D] To decide if Sadiq can bring a claim or not, when determining the date on
which Sadiq had the knowledge required for bringing an action for damages in
respect of the relevant damage, knowledge that any acts or omissions did or
did not, as a matter of law, involve negligence is a relevant consideration.

Answer:
[B] This statement is CORRECT.
Section 14A (1) of the Limitation Act 1980 (“LA 1980”) applies where the starting date
(as defined by section 14A (5)) for reckoning the period of limitation under section
14A (4)(b) LA 1980 falls after the date on which the cause of action accrued.
According to section 14A (5) LA 1980, the starting date is the earliest date on which
the claimant had both knowledge (defined in sections 14A (6) and 14A (7)) required for
bringing an action for damages in respect of the relevant damage and a right to bring
such an action.
Irrespective of whether the court determines Sadiq had the requisite knowledge in
March 2021 or April 2021, he is still currently in time for the LA 1980’s purposes under
section 14A, as he has 3 years from the starting date.
Incorrect Answers:
[A] This statement is incorrect.
This is because the question is concerned with latent damage to property, such that sections
14A and 14B LA 1980 apply to it. As such, section 2 LA 1980 (and the 6 year limitation
period for negligence actions) does not apply (see section 14A (2) LA 1980).

[C] This statement is incorrect.

Section 14A (1) LA 1980 states that it applies to any action for damages for negligence other
than one to which S11 LA 1980 applies ie. Section 14A applies in cases where there is NO
personal injury. The question here is concerned with latent damage to property.

[D] This statement is incorrect.

Section 14A (9) LA 1980 explicitly states that knowledge that any acts or omissions did or
did not, as a matter of law, involve negligence is irrelevant for the purposes of determining
whether the claimant (i.e. Sadiq) had the relevant knowledge for the purposes of section 14A
(5) LA 1980.
Question 3

Nikita issued a claim form against Phil some time ago and has realised that today is
the last day of the 4 month period in which to serve the claim form on him. The delay
has been caused by Nikita being away for two months after issuing the claim form
and because she has been waiting for an expert’s report dealing with the quantum of
the claim.

What is the best advice to give Nikita in these circumstances?

[A] She should serve the claim form today and, if she cannot get Phil’s written
agreement to extend the time which she has to serve the particulars of claim,
she should also make an application to the court as soon as possible, seeking
a court order to that effect, as the delayed expert’s report on quantum may be
a sufficient reason for granting an extension of time to serve the particulars of
claim.

[B] She should make an application to the court tomorrow, seeking an order that
the court extend the time which she has to serve the claim form (and
particulars of claim), as it is possible to obtain an extension of time to serve
the claim form after the expiry of the 4 month period.

[C] She should make an application to the court when she receives the expert’s
report, seeking an order that the court extend the time which she has to serve
the claim form (and particulars of claim), as it is possible to obtain an
extension of time to serve the claim form any time after the expiry of the 4
month period.

[D] She should make an application to the court today, before the 4 month period
expires, seeking an order that the court extend the time which she has to
serve the claim form, as the delayed expert’s report on quantum is likely to be
a good reason for granting an extension of time to serve the claim form. If
granted, the particulars of claim could then be served within 14 days after
service of the claim form.

Answer:
[A] This is the BEST advice and is therefore the CORRECT answer: see the
examinable commentary in the first two paragraphs of 7.6.2 (and, particularly, the
decision in Glass v Surrendram). This is examinable commentary.
As long as Nikita completes one of the ‘steps’ in CPR 7.5 today she will have
complied with the service requirements for the claim form and will not need to rely on
an extension application under CPR 7.6.
Under CPR 16.3(2)(c) Nikita could state on the claim form that she cannot say how
much is likely to be recovered or, under CPR 16.3(2)(b), give a figure within one of the
brackets in (i)-(iii) if this is possible.
The particulars of claim must be served no later than the latest date for serving the
claim form (under CPR 7.4(2) and she can seek Phil’s written agreement to vary this
time limit under CPR 2.11.
If Phil does not agree to this, she could apply to the court for an extension under CPR
3.1(2)(a) and following the commentary in the first two paragraphs of 7.6.2 (and,
particularly, the decision in Glass v Surrendram) this may be a sufficient reason for
granting an extension of time for service of the particulars of claim, even if it would
not be a good reason for granting an extension of time for service of the claim form.

Incorrect Answers:
[B] This is possible, but NOT the BEST advice.
Under CPR 7.5 Nikita must complete one of the ‘steps’ before 12.00 midnight on the
calendar day 4 months after issue ie today.
CPR 7.6(3) allows her to apply for an order to extend time for service of the claim form after
this period has expired, so there is nothing to stop Nikita from making the application
tomorrow, BUT it is not a good idea.
Where Nikita waits until tomorrow, she will be making an application out of time and,
therefore, the range of circumstances in which the court can make the order sought is
dramatically reduced: see CPR 7.6(3) and the examinable commentary in the first two
paragraphs of 7.6.3.

[C] This is possible, but NOT the BEST advice.

Under CPR 7.5 Nikita must complete one of the ‘steps’ before 12.00 midnight on the
calendar day 4 months after issue ie today.
CPR 7.6(3) allows her to apply for an order to extend time for service of the claim form after
this period has expired, so there is nothing to stop Nikita from making the application when
she receives the expert’s report, BUT it is not a good idea.
Where Nikita waits until she receives the expert’s report, she will be making an application
out of time and, therefore, the range of circumstances in which the court can make the order
sought is dramatically reduced: see CPR 7.6(3) and the examinable commentary in the first
two paragraphs of 7.6.3.
In addition, depending on how long it takes to receive the expert’s report and incorporate the
quantum advice into the claim form, she may fall foul of CPR 7.6(3)(c) as she must make
any application promptly. It is not correct to say that she could make the application “any
time” after the expiry of the 4 month period; it must be made promptly.

[D] This is possible, but NOT the BEST advice.

Under CPR 7.5 Nikita must complete one of the ‘steps’ before 12.00 midnight on the
calendar day 4 months after issue ie today.
CPR 7.6(2) allows her to apply for an order to extend time for service of the claim form
before this period has expired (and this is the general rule) so there is nothing to stop Nikita
from making the application today, BUT it is not a good idea as the court is unlikely to grant
an extension in these circumstances: see the examinable commentary in the first two
paragraphs of 7.6.2 (and, specifically, the decision in Glass v Surrendram). This explanation
for the delay is unlikely to be a good reason for an extension of time to serve the claim form,
even if it might be a sufficient reason for granting an extension of time to serve the
particulars of claim.
It is correct to say that the particulars of claim can be served within 14 days after service of
the claim form (see CPR 7.4(1)(b)) but this rule is subject to CPR 7.4(2) which states that the
particulars of claim must be served no later than the latest time for serving the claim form.
Therefore, here the particulars of claim cannot follow 14 days after service of the claim form
as we are on the last day of the 4 month period.

[NB. Note to tutors:

If any student raises it: the wording of PD 16 para 3.2 is slightly at odds with CPR 7.4(2):

 CPR 7.4(2) says that the particulars of claim must be served no later than
“the latest time for serving a claim form” and
 PD 16 para 3.2 says the particulars of claim must be served no later than “4
months from the date of issue of the claim form”

This could potentially result in two different dates as the latest time for serving the claim form
requires us to look at CPR 7.5 and taking a ‘step’. If the step was taken on the last day of the
4 months (as could happen on the facts here) then the claim form would be “served” on the
second business day after completion of the relevant step in CPR 7.5. The commentary at
paragraph 7.4.3 suggests that presumably it is intended that the “latest time” for service of
the particulars of claim in these circumstances is that deemed day (ie. You would have until
the 2nd business day after taking the step to serve the particulars of claim).
However, the date 4 months after “issue” would be the same date as completion of the
relevant step in CPR 7.5.
CPR 7.4(2) and PD 16 para 3.2 are on the syllabus/curriculum, but para 7.4.3 is not, so it
unlikely this point will be raised. The point being made above re Answer [D] is still correct
whichever interpretation you take, as it is correct to say, in either case, that the particulars of
claim cannot follow 14 days later. So hopefully this will not be an issue that you need to
raise!]
Question 4

You act for the beneficiaries of the Three Lions Trust. The beneficiaries are in dispute
with the trustees, Mr Skinner and Mr Baddiel, over the extent of the trustees’ power of
sale under the trust deed. Acting on your correct advice, the beneficiaries issue
proceedings using the Part 8 procedure, asking the court to determine the proper
interpretation of the relevant clause in the trust deed. The claim form has been
served, but 21 days has passed since then and the trustees have not filed or served
an acknowledgement of service on the beneficiaries.

Which of the following statements is correct?

[A] As no acknowledgment of service has been filed, the beneficiaries can apply
for default judgment pursuant to Part 12.

[B] The beneficiaries should wait a further 7 days to allow the trustees the
appropriate time period within which to file and serve the acknowledgement of
service.

[C] The trustees do not need to file and serve an acknowledgement of service if
they file a defence with written evidence within the next 7 days.

[D] The trustees may still attend the hearing of the claim, without having filed or
served the acknowledgement of service, but may not take part in the hearing
unless the court gives permission.

Answer:
[D] This statement is CORRECT.
In this question, the defendant trustees, upon being served with the claim form,
should have filed an acknowledgement of service in the relevant practice form not
more than 14 days after service of the claim form (CPR 8.3(1)(a)) and should have
served the acknowledgment of service on the claimant beneficiaries (CPR 8.3(1)(b)).
The defendant trustees have failed to do this and the time period for doing so has
now expired, such that CPR 8.4 applies: see CPR 8.4(1).
In consequence, CPR 8.4(2) applies, so the trustees may still attend the hearing of the
claim, but may not take part in the hearing unless the court gives permission.

Incorrect Answers:
[A] This statement is incorrect.
Where a claimant uses the Part 8 procedure s/he may not obtain default judgment under
Part 12: see CPR 8.1(5).
[B] This statement is incorrect.
Under CPR 8.3(1) the defendants must file the acknowledgement of service not more than
14 days after service of the claim form and serve it on the claimants (and any other party).
As 21 days has already passed since the service of the claim form, waiting a further 7 days
would not be appropriate; the time period for filing and serving the acknowledgement of
service has already gone by.

[C] This statement is incorrect.

Under CPR 8.9(a) (i) and (ii), Part 16 (on statements of case) and Part 15 (on defences and
replies) do not apply and that rule also states at the start that the defendants are not
required to file a defence. Part 8 is used where there are unlikely to be any substantial
disputes of fact (CPR 8.1(1)) so a defence would not be required; the defendants still need
to file and serve an acknowledgement of service in accordance with CPR 8.3-8.5.
If the defendant wishes to rely on written evidence, this must be filed with the
acknowledgement of service, not the defence as there will be no defence in a Part 8 claim:
see CPR 8.5(3).
Question 5

Which of the following statements is WRONG?

[A] An application for summary judgment may be based on a point of law,

including a question of construction of a document.

[B] If an order for summary judgment is made against a respondent who does not
appear at the hearing of the application, the respondent may not apply for the
order to be set aside or varied.

[C] When faced with an application for summary judgment, a court may make a
conditional order, by which it requires a party to pay a sum of money into
court.

[D] Where the court dismisses an application for summary judgment or makes an
order that does not completely dispose of the claim, the court will give case
management directions as to the future conduct of the case.

Answer:
[B] This statement is WRONG and is therefore the CORRECT answer.
PD 24 para 8.1 confirms that if an order for summary judgment is made against a
respondent who does not appear at the hearing, the respondent may apply for the
order to be set aside or varied.
On the hearing of an application under para 8.1 the court may make such order as it
thinks just (see PD 24 para 8.2).
NB. PD 24 para 8.1 also refers to CPR 23.11, which states that if the applicant or any
respondent fails to attend the hearing of an application, the court may proceed in his
absence and if this happens, and the court makes an order at the hearing, the court may
on application or on its own initiative, re-list the application.

Incorrect Answers:
[A] This statement is correct.
See PD 24 para 1.3(1).

[C] This statement is correct.

See PD 24 para 5.1(4) and 5.2(1).

[D] This statement is correct.

See PD24 para 10.
Question 6
Harry owns White Noise Road, a new North London boutique concert venue. This
weekend marks the start of the peak season and Harry has booked artists to perform
on both the Saturday and Sunday. Given Harry’s desire to get the venue up and
running, he did not have time to soundproof the walls to the fullest possible extent.
Gareth, who lives next door to the new concert venue, has become aware of the fact
that the walls may not have been adequately soundproofed and is worried about the
effect the noise will have on his valuable collection of rare and sensitive butterflies.

Gareth therefore seeks an interim injunction to prevent the concerts from taking place
this weekend. Harry has made it clear that, if the injunction is granted, he will have to
take further steps to soundproof the walls, meaning that he will not be able to open
White Noise Road again this season. The future bookings will simply be lost and the
business may no longer be viable.

What is the most likely approach the judge will take to Gareth’s application for an
interim injunction in this case?

[A] The judge should ask herself whether Gareth has a prima facie case and, if
she determines that he does have such a case, go on to grant the injunction
which Gareth seeks without hearing further argument on the subject, as long
as Gareth can provide a cross-undertaking in damages.

[B] Given the timing of the concerts, the judge should, without hearing either
party’s submissions, impose a stay of proceedings until after the first concerts
at the weekend. She should then direct that the application be dealt with by
way of a telephone hearing at 10am on Monday morning.

[C] If there is a serious question to be tried, the judge should consider whether
Harry could be adequately compensated in damages were the injunction to be
granted incorrectly. Where the judge answers that question in the affirmative,
the court will order Gareth to provide a cross-undertaking in damages in order
to grant the injunction.

[D] Having determined that there is a serious question to be tried and being in
doubt as to the adequacy of damages for both Gareth and Harry, the Judge
should go on to assess where the balance of convenience lies. As part of her
assessment, the judge may investigate the degree of likelihood of Gareth
succeeding at trial.

Answer:
[D] This is the CORRECT answer as it is the MOST LIKELY approach.
The guidelines that the court will follow are as set out in paras 15-7, 15-8 and 15-10 of
Vol 2 (serious question to be tried, followed by a consideration as to whether
damages would be an adequate remedy for a party injured by the court’s grant of, or
its failure to grant, an injunction and then consideration of where the balance of
convenience lies).
In addition, the facts suggest that the judge’s decision whether to grant or refuse the
injunction will effectively end the action. In such circumstances, it is appropriate for
the court, in assessing the balance of convenience, to investigate the “degree of
likelihood” of Gareth (the applicant here and the claimant at trial) succeeding at trial.
It goes on to say that the judge’s investigation need not, and perhaps should not,
amount to a trial of the action. See Vol 2 at Chapter 15 and specifically para 15-18.

Incorrect Answers:
[A] This statement is incorrect.
The American Cyanamid test does not require the court to consider whether the applicant
has a prima facie case. Rather, it requires the court to consider whether there is a “serious
question to be tried”. See paras 15-7 and 15-8 of Vol 2.

[B] This statement is NOT the most likely approach.

The judge’s proposed course of action is possible under CPR 3.1(2)(f), but it is not the most
likely approach as it will be to nobody’s benefit. Arguably, it runs contrary to the overriding
objective (see CPR 1.1, 1.3 and 1.4) and might be a dereliction of the judicial duty as well.
The timing of the concerts does not prevent the court from dealing with the application at
short notice; applications which are urgent can be dealt with in accordance PD25A para 4.

[C] This statement is NOT the most likely approach.

This is not the most likely approach as the cross-undertaking in damages is something that
an applicant must be prepared to give in return for the grant of an injunction; the court has
no power to order a party to give such an undertaking.
Question 7

Tyrone owns a patent for a chemical compound, called Chemical XY. Tyrone believes
that the patent is being infringed; someone is illicitly importing into the UK quantities
of Chemical XY which have been manufactured abroad. Although Tyrone knows that
the Commissioners of Customs and Excise have done nothing wrong, he believes
that they know the identity of the person importing Chemical XY into the UK.

In these circumstances, what would you advise Tyrone to do?

[A] Tyrone should apply for an order for disclosure against the Commissioners of
Customs and Excise before proceedings have started.

[B] Tyrone should apply for an order for disclosure against the Commissioners of
Customs and Excise on the basis that they are not a party to proceedings.

[C] Tyrone should seek a Norwich Pharmacal order against the Commissioners of
Customs and Excise.

[D] Tyrone should seek an order for standard disclosure against the Commissioners of
Customs and Excise.

Answer:
[C] This is CORRECT.
Here, the Commissioners of Customs and Excise have been innocently caught up in
the wrongdoing of another i.e. the person who has infringed Tyrone’s patent. In those
circumstances, the Commissioners are more than a mere witness and so can be
compelled to disclose the identity of the wrongdoer to Tyrone: see Norwich
Pharmacal v Customs and Excise Commissioners (a case which students should be
able to refer to by name) and the examinable commentary that follows CPR 31.18. The
facts of this question mimic the facts of that case.

Incorrect Answers:
[A] This is incorrect.
Given that Tyrone knows that the Commissioners of Customs and Excise have done nothing
wrong, he will not bring proceedings against them. Accordingly, the test set out in CPR 31.16
will not be met in this instance, as the respondent is NOT likely to be a party to subsequent
proceedings.

[B] This is incorrect.

Given that proceedings have not yet been commenced, this is not an option available to
Tyrone. For CPR 31.17 to apply, the proceedings need to have been started as it refers to
“an application to the court under any Act for disclosure by a person who is not a party to the
proceedings.”

[D] This is incorrect.

Again, given proceedings have not yet been commenced, this is not an option. The purpose
of specific disclosure (or inspection) under CPR 31.12 is to allow parties to obtain disclosure
of those documents that will assist its case and can be used at any time after proceedings
are issued. It would not be appropriate here.
Question 8

Filip has brought proceedings against Josef, a builder. Filip’s case hinges on the fact
that the widgets which Josef used in the construction of a building were the wrong
size, causing the collapse of the building’s roof. The entirety of Filip’s computer lab,
which was housed on the top floor of the building, was destroyed in the collapse.

Filip has instructed Ramesh, an expert in engineering, to provide an expert’s report in

relation to these proceedings. Ramesh wants to know what his duties and
responsibilities are as an instructed expert.

Which of the following statements is correct?

[A] Ramesh will not be cross-examined on the contents of his instructions unless the
court is satisfied that there are reasonable grounds to consider that the substance of the
instructions in the report are inaccurate or incomplete and cross-examination is in the
interests of justice.

[B] If, having produced a report which is then exchanged with the other side, Ramesh
changes his view on a material matter, he will not be under a duty to communicate his
change of mind to the court at any stage, as long as he has complied with his duty to
communicate that change of view to Josef.

[C] Ramesh should state the facts or assumptions on which his opinion is based. He is
subject to a duty to consider all material facts, although this is not the case for those which
might detract from his opinion.

[D] Where Ramesh refers to plans and photographs of the building, these must be
provided within 14 days of exchange of his report if requested by Josef.

Answer:
[A] This statement is correct.
Please see PD 35 para 5.

Incorrect Answers:
[B] This statement is incorrect.
In these circumstances, Ramesh will come under a duty to communicate his change of view
to the other side (who is Josef here) and, when appropriate, will also have to communicate
his change of view to the court. Please see PD 35 para 2.5 and the examinable commentary
at 35.3.2, citing the 6th principle from the judgment in The Ikarian Reefer (which is a case
that is within their syllabus/curriculum reading, but is not one they need to be able to refer to
by name).
[C] This statement is incorrect.
It is correct to say that Ramesh should state the facts or assumptions on which his opinion is
based and that he is subject to a duty to consider all material facts. However, he must also
consider all material facts, including those which might detract from his opinion. Please see
PD 35 para 2.3 and the commentary at 35.3.2, citing the 3rd principle from the judgment in
The Ikarian Reefer (which is a case that is within their syllabus/curriculum reading, but is not
one they need to be able to refer to by name).

[D] This statement is incorrect.

Where Ramesh refers to plans and photographs of the building, these must be provided to
Josef at the same time as the exchange of the reports (not within 14 days of exchange of his
report if requested by Josef). Please the commentary at 35.3.2, citing the 7 th principle from
the judgment in The Ikarian Reefer (which is a case that is within their syllabus/curriculum
reading, but is not one they need to be able to refer to by name).
Question 9

Christian brings a personal injury claim against his employer, Denmarket Ltd
(“Denmarket”), following at accident at work. Proceedings are issued and the matter
proceeds to trial, where Christian is awarded £10,000 (in damages and interest).

Denmarket made a Part 36 offer early on in the proceedings of £9,000 and the amount
of interest from the end of the relevant period to trial is calculated to be £2,500.

Christian’s costs for the whole claim, including any work done prior to the issue of
proceedings, are £3,250. Denmarket’s costs for the same period are £3,000, with their
costs (and interest on those costs) from the end of the relevant period to trial being
£2,200.

Which of the following the most likely costs order that the court will make?

[A] Denmarket will be ordered to pay Christian’s costs up to the end of the relevant
period and Christian will be ordered to pay Denmarket’s costs and interest on those costs
from the end of the relevant period, but Denmarket will not be able to enforce this costs
order as qualified one-way costs shifting applies to personal injury claims.

[B] Denmarket will be ordered to pay Christian’s costs up to the end of the relevant
period and Christian will be ordered to pay Denmarket’s costs and interest on those costs
from the end of the relevant period. Denmarket will be able to enforce this costs order in full
as it does not exceed the aggregate amount of the court order for damages and interest
made in favour of Christian.

[C] Christian is the successful party and will not be ordered to pay any of Denmarket’s
costs as Christian has obtained a judgment that is more advantageous than Denmarket’s
Part 36 offer.

[D] Christian is the successful party and will not be ordered to pay any of Denmarket’s
costs as the general rule that the unsuccessful party pays the costs of the successful party
will apply here, so Denmarket will pay all of Christian’s costs.

Answer:
[B] This is the most likely order that the court will make on costs.
In this case, Christian is the overall winner as he has been awarded £10,000 (including
interest) at trial.
However, Denmarket has made a Part 36 offer of £9,000 which includes interest up to
the end of the relevant period (see CPR 36.5(4)(a)).
The interest that has accrued since the end of the relevant period must be deducted
from the amount awarded at trial to ensure that the amount of the Part 36 offer and the
amount awarded at trial are being compared at the same point in time (ie. at the end of
the relevant period).
Therefore:
 the Part 36 offer at the end of the relevant period = £9,000 (including
interest) and
 the amount awarded at trial = £10,000 - £2,500 = £7,500 (including
interest).

Christian has therefore failed to obtain a judgment more advantageous than the
Denmarket’s Part 36 offer; even though it looks as if he has ‘beaten’ the offer by the
amount awarded at trial, when the interest accrued in the period from the end of the
relevant period to trial is deducted, he has not obtained a more advantageous
judgment. It was a good offer and Christian should have accepted it.
He did not accept it so CPR 36.17(1)(a) and (3) applies. The court must, unless it
considers it unjust to do so, order that Denmarket is entitled to his costs from the
date on which the relevant period expired and interest on those costs (which we are
told here = £2,200). There is nothing in the question to suggest that this costs order
would be unjust.
The final consideration is that CPR 44.13-14 applies here as it is a personal injury
case so qualified one-way costs shifting applies. The effect of this is that costs orders
made against Christian may be enforced without the permission of the court, but only
to the extent that the aggregate amount in money terms of such orders does not
exceed the aggregate amount in money terms of any order for damages and interest
made in favour of Christian.
Here, Christian has been awarded £10,000 in damages and interest and Denmarket’s
costs from the end of the relevant period to trial and interest on those costs amounts
to £2,200. Therefore, whilst QOCS applies, Denmarket is able to enforce its costs
order of £2,200 in full (as it is less than the amount Christian was awarded in damages
and interest at trial ie. £10,000).

Incorrect Answers:
[A] This statement is possible, but is not the most likely costs order.
See the explanation for answer [B] above.
Whilst QOCS applies, Denmarket is able to enforce its costs order of £2,200 in full (as it is
less than the amount Christian was awarded in damages and interest at trial).

[C] This statement is possible, but is not the most likely costs order.
See the explanation for answer [B] above.
Whilst Christian is the successful party, he has failed to obtain a judgment that is more
advantageous than Denmarket’s Part 36 offer, so CPR 36.17(1)(a) & (3) applies and in turn
CPR 44.13-14 applies. Therefore, Denmarket is likely to obtain a costs order in its favour for
its costs (and interest on those costs) from the end of the relevant period to trial and be able
to enforce this costs order of £2,200 in full (as it is less than the amount Christian was
awarded in damages and interest at trial).
[D] This statement is possible, but is not the most likely costs order.
See the explanation for answer [B] above.
Whilst Christian is the successful party, he has failed to obtain a judgment that is more
advantageous than Denmarket’s Part 36 offer, so CPR 36.17(1)(a) & (3) applies and in turn
CPR 44.13-14 applies. Therefore, Denmarket is likely to obtain a costs order in its favour for
its costs (and interest on those costs) from the end of the relevant period and be able to
enforce this costs order of £2,200 in full (as it is less than the amount Christian was awarded
in damages and interest at trial). This would override CPR 44.2 referred to here.
Question 10 (Theme 4)

Jack was employed by Bukayo’s company, Euroflowers, and was injured in an

accident at work. As a result of the accident, Jack suffered a fractured bone in his
hand, from which he went on to make a full recovery, and an injury to his heel. Jack
alleged that his heel injury left him in constant pain, such that he was largely
dependent on painkillers and crutches. As a result, Jack sued Euroflowers for
£250,000.

Bukayo had, and continues to have, a strong suspicion that Jack is exaggerating the
severity of his injuries. Indeed, Bukayo has previously received reports of Jack
playing football in the local park at weekends. At a case management conference held
five days ago (the trial is not scheduled to take place for another six months) in
response to a question from Euroflowers’ counsel about the court’s potential to make
an order striking out all or part of Jack’s case, the Judge indicated that she was not
minded to strike out any of Jack’s claim at this stage and that she would dismiss any
application made by Euroflowers in this regard.

Working on the premise that strike out is not an option in this case, what is the best
course of action for Euroflowers to pursue now?

[A] Euroflowers should apply for summary judgment against Jack on the whole of
his claim as it is exaggerated and unlikely to succeed at trial.

[B] Euroflowers should seek to protect its position on costs by making a Part 36
offer that reflects, in its amount, Bukayo’s belief that Jack is being fraudulent
about the extent of his injuries.

[C] Euroflowers should make a Calderbank offer to settle what it believes to be

the genuine elements of Jack’s claim while at the same time offering to settle
the issue of costs on the basis that Jack will pay Euroflowers’ costs incurred in
respect of the fraudulent or dishonest aspects of the claim on the indemnity
basis.

[D] Euroflowers should do nothing; they should proceed to trial without making
any further applications to the court and the costs will be assessed at the end
of the proceedings. In deciding what order to make about costs, the court will
have regard to all the circumstances, including whether Jack has exaggerated
his claim.

Answer:
[C] This is the best answer.
It avoids the difficulties set out in the explanation to [B] below and ensures that
Euroflowers’ position on costs is adequately protected. While the precise formulation
of such an offer would depend on the facts here, the offer would be made without
prejudice save as to costs and, unless accepted, would be available to Euroflowers
when the issue of costs is considered by the trial judge.
NB. The case on which this scenario is based (Summers v Fairclough Homes Ltd
[2012] UKSC 26) is set out in the examinable commentary at para 36.2.1, but is NOT
one of the cases students should be able to refer to by name. However, Calderbank is
one of the cases that students should be able to refer to by name.

Incorrect Answers:
[A] This is a possible answer, but is NOT the best course of action to take in the
circumstances.
Whilst the conditions for obtaining summary judgment on perhaps a particular issue within
the claim under CPR 24.2 may be able to be satisfied, the Judge has already indicated that
she would not consider strike out at this stage. It is therefore likely that an application for
summary judgment at this stage would fail.

[B] This is a possible answer, but is NOT the best course of action to take in the
circumstances.
Part 36 might present a viable option for Euroflowers in this case. However, it is not the best
option here.
CPR 36.13(1) provides that, “where a Part 36 offer is accepted within the relevant period the
claimant will be entitled to the costs of the proceedings (including the recoverable pre-action
costs) up to the date on which notice of acceptance was served on the offeror”. Therefore, if
Jack accepted the Part 36 offer, Euroflowers would have to pay all of Jack’s costs up to the
date of acceptance, including any that relate to the exaggerated, fraudulent or dishonest part
of the claim.

[D] This is a possible answer, but is NOT the best course of action to take in the
circumstances.
Whilst it is correct to say that in deciding what order to make about costs at the end of the
case, under CPR 44.2(5) the court will have regard to all the circumstances, including
whether Jack has exaggerated his claim, it would be imprudent to take no steps whatsoever
to protect Euroflowers’ position on costs now, particularly given the circumstances.
Question 11

Last week, you represented Steph Bronze in a personal injury case in the County
Court. It has been agreed by all parties that the Circuit Judge will hand down the
judgment in court tomorrow morning. Steph thinks that she is likely to lose and asks
you to tell her how you can look to overturn the Judge’s decision, should the need
arise.

Which one of the following pieces of advice is correct?

[A] Steph will need to seek permission to appeal. Such application for permission
to appeal must be made to the appeal court in an appeal notice.

[B] Steph will need to seek permission to appeal and if the Circuit Judge refuses
to grant permission to appeal, she will not be entitled to make a further
application for permission to the appeal court.

[C] Permission to appeal may be given only where the court considers that the
appeal would have a real prospect of success and there is some other
compelling reason why the appeal should be heard.

[D] A court order giving permission to appeal may limit the issues to be heard and
may be subject to conditions. The court is also able to order security for costs
of an appeal.

Answer:
[D] This is the CORRECT answer.
See CPR 52.6(2)(a) and (b) and the reference in brackets at the end.
Incorrect Answers:
[A] This statement is incorrect.
See CPR 52.3(2).
Steph will need permission to appeal, but the application for permission may be made to the
lower court at the hearing at which the decision to be appealed was made OR to the appeal
court in an appeal notice. It is not correct to say that it must be made to the appeal court in
an appeal notice.

[B] This statement is incorrect.

See CPR 52.3(3)(a).
If the Circuit Judge (the lower court here) refuses to grant permission to appeal, she will be
entitled to make a further application for permission to the appeal court.
[C] This statement is incorrect.
See CPR 52.6(1).
This rule lays down a disjunctive test, not a conjunctive test, for permission to appeal with
first appeals (i.e. it uses the word “or”, not the word “and”).
Question 12

Which of the following statements is correct?

[A] Where the judgment debtor is a company, a judgment creditor may apply
without notice to the court for an order requiring that an officer of that
company attend court to provide information about the judgment debtor’s
means.

[B] At the time of service of the order to attend court, the judgment debtor must
be offered or paid a sum reasonably sufficient to cover his travelling expenses
to and from court and a sum as compensation for his loss of time.

[C] Where a judgment debtor is required to attend court and the hearing is before
a judge, the judgment creditor or his representative may attend the hearing
and conduct the questioning.

[D] If judgment debtor has been ordered to attend court to provide information
which is needed to enforce a judgment or order and that person fails to attend
court, the court will make a committal order against the person.

Answer:
[A] This statement is CORRECT.
See CPR 71.2(1) and (2).
Incorrect Answers:
[B] This statement is incorrect.
See CPR 71.4.
A person ordered to attend court may, within 7 days of being served with the order, ask the
judgment creditor to pay him a sum reasonably sufficient to cover his travelling expenses to
and from court and the judgment creditor must pay such a sum if requested.
There is no need to pay or offer to pay this at the time the order is served and there is no
obligation on the judgment creditor to compensate the judgment debtor for his loss of time
(unlike there is for witness summonses). Do not confuse CPR 71.4 with 34.7!

[C] This statement is incorrect.

CPR 71.6(2) indicates that the hearing can be carried out before a judge, while CPR 71.6(3)
(b) provides that the judgment creditor or her representative must (not may) attend and
conduct the questioning if the hearing is before a judge.

[D] This statement is incorrect.

By CPR 71.8(1), where a person against whom an order has been made under CPR 71.2(1)
fails to attend court, the court will refer the matter to a High Court Judge or a Circuit Judge.
Under CPR 71.8(2) that judge may (not will) make a committal order against that person.