Civil Lit MCQ2 Feedback

1.

A claim has been issued in the Chancery Division of the High Court. You
have been instructed on behalf of Karen, the defendant, on responding
to the claim. Your instructing solicitor wishes to take a single step to
prevent default judgment being entered at any stage.
Which ONE of the following is CORRECT?
Select one:
A. Karen should file an acknowledgment of service within 14 days of service
of the claim form.
B. Karen should file defence within 14 days of service of the claim form.
C. Karen should file an acknowledgment of service within 14 days of service
of the particulars of claim.
D. Karen should file defence within 14 days of service of the particulars of
claim.
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ANSWER: [D] In non-specialist claims time runs from service of the
particulars of claim rather than from service of the claim form. The single step
needed to stop the possibility of judgment being entered in default is to file a
defence. Filing an acknowledgment of service simply adds 14 days to the
period for filing the defence. APA Civil Procedure paras 12.02 to 12.11
The correct answer is: Karen should file defence within 14 days of service of
the particulars of claim.

2.

You have been asked to advise about entering default judgments. Which
of the following statements numbered (i) to (iv) is/are CORRECT? (i) A
court may enter judgment in default of an acknowledgment of service
only if a defendant fails to file an acknowledgement of service or a
defence, and the time for doing so has expired. (ii) A court may enter
judgment in default of a defence if a defendant files an acknowledgment
of service but fails to file a defence, and 28 days have passed after
service of the claim form. (iii) If default judgment is wrongly entered
under CPR Part 12 the court may set it aside. (iv) If the Defendant makes
no response to a claim seeking damages and an injunction, the claimant
can file a request for default judgment if the Claimant abandons his
claim for the injunction.
Select ONE of the following:
Select one:
A. (i) and (ii) only.
B. (i) and (iv) only.
C. (ii) only.
D. (iii) only.
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ANSWER: [B] (i) correctly summarises CPR r 12.3(1). Note the phrase "only
if" appears in the opening line of r 12.3(1). (ii) counts the 28 days from service
of the claim form, whereas the particulars of claim is the relevant document.
(iii) is wrong because of the use of the word "may". In this situation the court
must set aside the default judgment (r 13.2). Abandoning equitable relief so
that default judgment can be entered on filing a request is dealt with by r
12.4(3), as summarised correctly in proposition (iv).
The correct answer is: (i) and (iv) only.


3.

You have been asked to advise about the factors that the court must
consider on an application to set aside a default judgment.
Which ONE of the following statements is CORRECT?
Select one:
A. The most important factor is the length of time between the expiry of the
time limited by the rules for responding to the claim and the defendants
application to set aside the default judgment.
B. The most important factor is whether the defendant has a defence with a
real prospect of success.
C. The most important factor is whether the claimant will be prejudiced by an
order setting aside the default judgment.
D. The most important factor is the explanation advanced by the defendant for
allowing the judgment to be entered in default.
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ANSWER: [B] Each of the answers raises a principle or factor that the court
must consider when deciding whether to set aside a default judgment (see
APA Civil Procedure para 13.33). It is clear, however, that the most important
factor is whether there is a defence with a real prospect of success (Thorn plc
v MacDonald [1999] CPLR 660).
The correct answer is: The most important factor is whether the defendant
has a defence with a real prospect of success.

4.

Assume the defendant in a claim for damages for breach of contract has
persuaded the court to set aside a default judgment in the courts
discretion. You are acting for the claimant. You are about to address the
court on any additional orders that should be made at the same time.
Which ONE of the following is CORRECT?
Select one:
A. You should ask for orders that the defendant must pay money into court to
await the final result on the claim, and that the defendant pays the costs
thrown away.
B. You should ask for an order that the defendant must pay money into court
to await the final result on the claim.
C. You should ask for an order that the defendant must pay the costs thrown
away.
D. You should ask for an order that the defendant must pay money into court
to await the final result on the claim, and an order that the claimant pays the
costs of the application to set aside.
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ANSWER: [A] Although costs normally follow the event, the theory on an
application to set aside is that even if successful the application has been
brought about by the defendants failure to respond to the claim in time. The
costs are therefore caused by the defendants default. Further, it is usual to
order a defendant who succeeds in setting aside a default judgment to pay
money into court to abide the event. See APA Civil Procedure para 13.40.
The correct answer is: You should ask for orders that the defendant must pay
money into court to await the final result on the claim, and that the defendant
pays the costs thrown away.



5

Mohammed wishes to make an application for summary judgment
against Duxford Mechanics Ltd, due to unsatisfactory repairs that were
made on his luxury Bentley Continental GT3. He has issued and served
a claim form and particulars of claim. Duxford Mechanics Ltd have only
served an acknowledgment of service. Which of the following
statements numbered (i) to (iv) is/are WRONG? (i) Mohammed cannot
apply for summary judgment against Duxford Mechanics because they
have not yet served a defence. (ii) Mohammed may now apply for
summary judgment against Duxford Mechanics Ltd and argue that
Duxford Mechanics Ltd has no real prospects of successfully defending
the claim. (iii) If Mohammed makes an application for summary
judgment, Duxford Mechanics Ltd need not file a defence before the
hearing. (iv) If Mohammed makes an application for summary judgment
Duxford Mechanics Ltd must file any evidence on which it wishes to rely
at least 7 days before the hearing.
Select ONE of the following:
Select one:
A. (i) only.
B. (ii) only.
C. (ii) and (iii) only.
D. (iv) only.
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ANSWER: [A] An application for summary judgment may be made after D has
filed an acknowledgment of service (CPR, r 24.4(1)(a)), so (i) is wrong. The
merits test for summary judgment is whether the respondent has a real
prospect of success (r 24.2). There is no need to file a defence (r 24.4(2)),
and any evidence in reply must be served at least 7 days before the hearing (r
24.5(1)).
The correct answer is: (i) only.

6.

By a contract in writing CGK Ltd agreed to sell an industrial compressor
to DWP Plc for 100,000, with risk to pass on delivery. DWP Plc sent a
cheque for this sum to CGK Ltd, who on receipt despatched the
compressor to DWP Plc. The lorry transporting the compressor struck a
bridge, damaging the compressor. When they found out, DWP Plc
stopped the cheque. CGK Ltd have issued a claim in the Commercial
Court claiming 100,000 on the dishonoured cheque. DWP Plc have filed
a defence claiming to set-off a counterclaim based on damage to the
compressor. DWP Plc have quantified their counterclaim at 120,000.
CGK Ltd have issued an application for summary judgment, and DWP
Plc have filed a witness statement substantiating their counterclaim.
Which ONE of the following statements is CORRECT?
Select one:
A. The court is most likely to dismiss the application for summary judgment.
B. The court is most likely to enter judgment on the claim for 100,000, but
with a stay of execution pending resolution of the counterclaim.
C. The court is most likely to enter judgment on the claim for 100,000, with
no stay of execution.
D. The court is most likely to enter judgment on the claim for 100,000 and
judgment on the counterclaim for 120,000.
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ANSWER: [C] If the claim had been based on the unpaid price of 100,000,
this would have been the correct answer, because the counterclaim would
have been a full set-off under the Sale of Goods Act 1979, s 53 (see APA Civil
Procedure para 24.31 at sub-para (b)). "Judgment on the claim for 100,000
and judgment on the counterclaim for 120,000" may be an attractive answer,
but the defendant DWP Plc has not made a cross-application for summary
judgment, so there is no application on which to found giving judgment on the
counterclaim. Under the cheque rule, which applies on these facts, the court
will give judgment for the whole claim, without allowing any set-off, and
without granting any stay of execution (see APA Civil Procedure para 24.34).
The correct answer is: The court is most likely to enter judgment on the claim
for 100,000, with no stay of execution.


7

Which of the following statements numbered (i) to (iv) about the test that
is applied in applications for summary judgment is/are CORRECT? (i)
The court must consider whether the respondent has no real prospects
of success. (ii) The court must consider whether there is a compelling
reason why the case should go to trial. (iii) The standard of proof is the
balance of probabilities. (iv) If the respondents case is merely arguable,
summary judgment should be granted.
Select ONE of the following:
Select one:
A. All of them.
B. (i) and (ii) only.
C. (ii) and (iii) only.
D. (i), (ii) and (iv) only.
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ANSWER: [D] The test for summary judgment (CPR r 24.2) is both that there
is no real prospect of success and that there is no other compelling reason
why the case should go to trial. It is not a test based on the balance of
probabilities, but if the respondent's case is merely arguable, summary
judgment should be granted (Sinclair v Chief Constable of West Yorkshire
(2000) LTL 12/12/00; Bee v Jenson [2007] RTR 9; APA Civil Procedure para
24.17).
The correct answer is: (i), (ii) and (iv) only.


8

Which of the following statements about striking out under the Civil
Procedure Rules numbered (i) to (iv) is/are WRONG? (i) A designated
money claim will be struck out automatically on failure to file a
directions questionnaire by the date specified in the notice of proposed
allocation. (ii) A non-designated money claim will be struck out
automatically on failure to file a directions questionnaire by the date
specified in the further notice requiring filing within 7 days. (iii) A claim
may be struck out on failure to file a statement of case within the time
specified in an unless order. (iv) A statement of case may be struck out
if the court finds it discloses no reasonable grounds for bringing a
claim.
Select ONE of the following:
Select one:
A. None of them.
B. (i) and (ii) only.
C. (iii) and (iv) only
D. (i) and (iii) only.
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ANSWER: [B] (i) states the procedure in CPR r 26.3(7A) incorrectly, in that
automatic striking out does not follow non-compliance with the notice of
proposed allocation, but after non-compliance with a further notice giving 7
days' notice requiring the defaulting party to file its directions questionnaire,
see APA Civil Procedure para 15.14. (ii) is also wrong, because there is no
automatic striking out in non-designated money claims, see APA Civil
Procedure para 15.15. (iii) is correct (r 3.4(2)(c), as is (iv) (r 3.4(2)(a)).
The correct answer is: (i) and (ii) only.


9

You have been instructed to advise on the conditions that must be
established before the court can make an interim payment. Which ONE
of the following is CORRECT?
Which ONE of the following is CORRECT?
Select one:
A. The claimant establishing a pressing need for the money.
B. The court finding that the claim is for a substantial sum of money taking
into account any set-off or counterclaim.
C. Judgment being entered for damages to be decided by the court.
D. Both defendants being insured where the claim is brought against two
defendants.
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ANSWER: [C] [C] is the correct answer because it sets out the ground in CPR
r 25.7(1)(b). The answer The court finding that the claim is for a substantial
sum of money taking into account any set-off or counterclaim sets out half
the requirement in r 25.7(1)(c), but omits the key element that the court must
be satisfied that if the claim went to trial the claimant would obtain judgment.
The other two answers deal with matters that are relevant to making interim
payments, but are not in themselves conditions for making these orders as set
out in r 25.7 (see APA Civil Procedure para 25.07).
The correct answer is: Judgment being entered for damages to be decided by
the court.




10

Which of the following statements about interim payments numbered (i)
to (iv) is/are WRONG? (i) An application for an interim payment can only
be made after the defendant acknowledges service. (ii) An application
for an interim payment must be served on the respondent at least 14
days before the hearing of the application for the interim payment. (iii)
The court may make an order for an interim payment to be paid by
instalments. (iv) The court must not order an interim payment for a sum
more than a reasonable proportion of the likely damages.
Select ONE of the following:
Select one:
A. (i) only.
B. (ii) only.
C. (iii) and (iv) only.
D. None of them.
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ANSWER: [A] (i) is nearly right, in that CPR, r 25.6(1) says an interim
payment may be applied for before the end of the period for acknowledging
service. The proposition in (i) is wrong because r 25.6(1) allows an application
to be made where D fails to acknowledge service, provided the time for doing
so has expired. (ii) is r 25.6(4). (iii) is allowed by r 25.6(7). (iv) is r 25.7(4).
The correct answer is: (i) only.



3/10 = 30%





CIVIL LIT MCQ 3 Feedback

1.

DM Productions Plc intend to bring a claim for damages for breach of
intellectual property rights which has a value of 1.5 million.
Which ONE of the following is CORRECT?
Select one:
A. Proceedings should be commenced in the Queens Bench Division of the
High Court.
B. Proceedings should be commenced in the Chancery Division of the High
Court
C. Proceedings should be commenced in the Commercial Court in the High
Court.
D. Proceedings should be commenced in the Technology and Construction
Court.
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ANSWER: [B] The value of the claim makes this a suitable claim for the High
Court. Intellectual property claims are allocated to the Chancery Division by
the Senior Courts Act 1981, s 61 and sch 1. See APA Civil Procedure para
3.36, sub-para (b).
The correct answer is: Proceedings should be commenced in the Chancery
Division of the High Court



2.

Jennifer Watts, an assembly line operative, brings a claim against her
employers, Bell Engineering plc, for damages for personal injury, loss
and damage which she suffered arising out of an accident at work. The
claim is said to be worth at 52,000 at todays date. This is made up of
49,500 for Jennifer's personal injury loss and damage, and 2,500 in
interest. Her costs to date amount to 4,500. Bell Engineering plc admit
negligence, require Jennifer to prove causation loss and damage, and
contend that such loss and damage that she may prove was caused by
her own contributory negligence, which it estimates to be at least 50%.
You have been asked to advise on whether the claim can be commenced
in the High Court. Which of the following statements numbered (i) to (iv)
below is/are CORRECT? (i) When calculating the value of a claim,
interest and costs must be disregarded. (ii) When calculating the value
of a claim, the fact that the court may make a finding of contributory
negligence must be disregarded. (iii) As this claim has a value
exceeding 50,000, proceedings may be commenced in the High Court.
(iv) As this claim has a value less than 50,000, it must be commenced
in the county court.
Select ONE of the following:
Select one:
A. (iii) only.
B. (i) and (iv) only.
C. (ii) and (iv) only.
D. (i), (ii) and (iv) only.
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ANSWER: [D] In valuing the claim, Art 9 states that the value of the claim
shall be calculated in accordance with CPR r 16.3 (6). CPR r 16.3(6) states
that when calculating how much the claimant expects to recover, the claimant
must disregard any possibility that the court may make an award of interest
and costs or make a finding of contributory negligence (see r 16.3(6)(a) and
(b)). Therefore, (i) and (ii) above are correct. If interest and costs are
disregarded, the value of the claim, which includes a claim for personal
injuries, is less than 50,000, so it must be commenced in the county court.
(iv) is therefore also correct see PD 7A para 2.2 and Art 5(1) of the High
Court and County Courts Jurisdiction Order 1991.
The correct answer is: (i), (ii) and (iv) only.


3.

Benjamin is the defendant to a claim recently brought by a government
department. The government departments claim is based on the alleged
breach by Benjamin of the provisions of a statute. You intend to argue
on behalf of Benjamin that the statute is incompatible with the
provisions of the European Convention on Human Rights.
Which ONE of the following statements is CORRECT?
Select one:
A. The point must be set out in the defence filed on Benjamins behalf.
B. The point need not be raised until shortly before trial, when it will have to
be included in the skeleton argument filed on Benjamins behalf.
C. The point cannot be raised in the present proceedings, but will have to be
raised in separate judicial review proceedings.
D. The point cannot be raised in the present proceedings, but will have to be
raised in separate proceedings before the European Court of Human Rights.
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ANSWER: [A] It is possible to raise an argument that a statute on which a
claim is based is incompatible with the European Convention on Human
Rights, and the court can make a declaration of incompatibility (Human Rights
Act 1998, s 4, see APA Civil Procedure para 4.35). A party intending to raise
a human rights point must set out full details in their statement of case (see
para 4.36), on these facts being Benjamins defence.
The correct answer is: The point must be set out in the defence filed on
Benjamins behalf.



4


Which of the following statements numbered (i) to (iv) about track
allocation is/are CORRECT? (i) A personal injury claim valued in total at
8,000, where damages for pain, suffering and loss of amenity are
estimated at 1,500 is likely to be allocated to the fast track. (ii) A claim
under 10,000 which will last more than a day is likely to be allocated to
the small claims track. (iii) A claim by a tenant against his landlord
seeking an order for the landlord to carry out repairs to the premises
estimated at 2,000 is likely to be allocated to the small claims track. (iv)
A non-personal injury claim over 25,000 will be allocated to the multi
track, even if it will not last more than a day.
Select ONE of the following:
Select one:
A. (i) only.
B. (i) and (ii) only.
C. (ii) and (iv) only.
D. (iii) and (iv) only.
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ANSWER: [A] The fast track is the normal track for personal injuries claims,
even where the total value of the claim is under 10,000, where damages for
PSLA exceeds 1,000 (CPR, r 26.6(1)(b); APA Civil Procedure para 15.25),
so (i) is correct. The court will not normally allow more than a day for a small
claims track claim (PD 26, para 8.1(2); APA Civil Procedure, para 15.26: this
makes allocation to the small claims track "unlikely" in this case); low value
landlord and tenant claims where repairs exceed 1,000 are normally
allocated to the fast track (para 15.25); and the court has the power to
allocate claims to lower tracks than indicated by the claim's financial value
(para 15.23), so (ii) to (iv) are all incorrect.
. The correct answer is: (i) only.


5.

Which of the following statements numbered (i) to (iv) about directions
in fast track claims is/are WRONG? (i) There should usually be no more
than 30 weeks between directions and trial. (ii) There should be
sequential exchange of witness statements from all witnesses of fact.
(iii) Expert evidence should be by a single joint expert. (iv) The court will
set a timetable for the steps between making directions and the trial.
Select ONE of the following:
Select one:
A. (i) and (iv) only.
B. (ii) only.
C. (ii) and (iii) only.
D. (iv) only.
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ANSWER: [B] The 30 week period in fast track claims is between giving
directions and trial, and is strictly a "standard period" rather than an absolute
rule, see CPR r 28.2(4) and APA Civil Procedure para 28.11. (i) captures this,
so is correct. Witness statements should be exchanged (usually
simultaneously), see PD 28, para 3.9(3) and 3.12, so (ii) is wrong. The court
will direct there to be a single joint expert unless there is good reason not to
do so (PD 28, para 3.9(4)), and the court will set a timetable (PD 28, para
3.6(1)(a)), so (iii) and (iv) are also correct. As (ii) is the only wrong answer, [B]
should be selected.
The correct answer is: (ii) only


6.


. Which of the following statements numbered (i) to (iv) about situations
where the parties can agree in writing to extend time limits is/are
CORRECT? (i) The time provided for filing a statement of case in an
unless order. (ii) The time for filing the directions questionnaire in a
designated money claim. (iii) The date for filing the pre-trial checklist in
a fast track case. (iv) The date for serving a claim form.
Select ONE of the following:
Select one:
A. None of them.
B. All of them.
C. (iv) only.
D. (i) and (iv) only.
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ANSWER [C] (i) is not permitted: CPR r 3.8(3) prevents the parties agreeing
to extend time for complying with (in effect) unless court orders. Regarding
(ii), the time for filing directions questionnaires cannot be extended in any type
of claim (not just designated money claims): r 26.3(6A). Strictly, this rule says
it is the date for complying with a notice of proposed allocation that cannot be
extended by agreement, but the main requirement of such a notice is the date
for filing directions questionnaires (see APA Civil Procedure para 28.15). As
to (iii), the date for filing a pre-trial checklist cannot be extended by the parties
in either a fast track (r 28.4(1)) or multi-track (r 29.5(1)) claim. On the other
hand, there is no restriction on the parties agreeing to extend the period for
serving a claim form.
The correct answer is: (iv) only.


7.


Michelle is claiming damages for breach of contract estimated at
27,000. There are no unusual features in the case. After the defence
was filed there was an allocation hearing, at which the case was
allocated to the multi-track. Later, the court held a case management
conference. Directions have been fully complied with by both sides. The
court has now listed the case for a pre-trial review. Michelle has asked
you whether there is anything that can be done to prevent this third case
management hearing.
Which ONE of the following statements is CORRECT?
Select one:
A. Pre-trial reviews are compulsory in all multi-track claims.
B. Listing for pre-trial reviews is a matter for the courts discretion, and there
are no grounds for objecting.
C. Pre-trial reviews are never held in claims worth 27,000, so the court
should be asked to vacate the pre-trial review in this case.
D. Holding a third case management hearing would be disproportionate in this
case, which has a value of only 27,000.
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ANSWER: [D] Case management hearings are a matter for the courts
discretion, which must be exercised in accordance with the overriding
objective. So, although the court has a discretion, the question arises as to
whether holding a third case management hearing will promote the just
disposal of the claim at proportionate cost (CPR, r 1.1). This includes dealing
with cases proportionately (r 1.1(2)(c)) and saving expense (r 1.1(2)(b)).
Holding a third such hearing is likely to be regarded as disproportionate, so
the correct answer is that holding a third case management hearing would be
disproportionate in this case, which has a value of only 27,000. See APA
Civil Procedure paras 4.13 and 4.30.
The correct answer is: Holding a third case management hearing would be
disproportionate in this case, which has a value of only 27,000.


8.


You have been instructed to advise Lillian in her claim for damages for
personal injuries against Moncaster Borough Council, which has been
allocated to the multi-track. Which of the following statements
numbered (i) to (iv) is/are WRONG? (i) Unless the court otherwise
orders, costs management under CPR, Part 3, will apply to the claim. (ii)
If a costs management order has been made, the court will thereafter
control the parties' budgets in respect of recoverable costs. (iii) If the
court makes a costs management order (but not otherwise) the court
will not depart from any approved budget when assessing costs on the
standard basis, unless satisfied there is good reason to do so. (iv) If the
court makes a costs management order (but not otherwise) the court
will take into account the costs involved in each procedural step when
making case management decisions.
Select ONE of the following:
Select one:
A. (i) only.
B. (ii) only.
C. (iii) only.
D. (iv) only.
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ANSWER: [D] (i) is CPR, r 3.12(1); (ii) is r 3.15(3); (iv) is contrary to r 3.17(2);
(iii) is r 3.18(b).
The correct answer is: (iv) only.


9.

In a multi-track claim between Joseph and Melanie a direction was made
8 months ago that the parties must serve lists of documents by a date 7
months ago. The directions did not set a trial date, but included a pre-
trial review set for today. Joseph served his list of documents 3 months
ago. Melanie has not served her list, despite reminders from Joseph.
Joseph is asking the court today to strike out Melanies defence for
failure to serve her list of documents.
Which ONE of the following is CORRECT?
Select one:
A. The application is likely to be dismissed because Joseph was himself
extremely late in serving his list of documents.
B. As both parties are in serious default of the directions made by the court,
both the claim and the defence are likely to be struck out.
C. As no trial date has been set it is almost certain that the court will impose a
sanction falling short of striking out Melanies defence.
D. Melanies delay of 7 months is likely to be regarded as inordinate and
inexcusable, so the defence is likely to be struck out.
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ANSWER: [C] Striking out is generally applied as a sanction for repeated
default of a number of court orders, as part of an unless order, or where a fair
trial is no longer possible (see APA Civil Procedure paras 37.18 to 37.20 and
particularly Taylor v Anderson [2003] RTR 305 at para 37.19). Although
Joseph was himself very late, he has served his list 3 months before the pre-
trial review. It is inconceivable that the court would now strike out his claim for
that delay. As there is no date fixed for trial, it should (admittedly depending
on the circumstances) be possible to have a fair trial despite Melanies delay,
so the court will seek to impose a proportionate sanction (Biguzzi v Rank
Leisure plc [1999] 1 WLR 1926).
The correct answer is: As no trial date has been set it is almost certain that
the court will impose a sanction falling short of striking out Melanies defence.


10.


Mabel has failed to comply with a court order imposing a sanction. She
is applying for relief from the sanctions.
Which ONE of the following statements is CORRECT?
Select one:
A. The court will consider all the circumstances of the case, including 9 factors
set out in the CPR, which include the interests of the administration of justice,
whether the application was made promptly and the effect of prejudice on
both parties.
B. The court will consider all the circumstances of the case so as to deal justly
with the application, including the need for litigation to be conducted efficiently
and at proportionate cost and the need to enforce compliance with rules,
practice directions and orders.
C. The court may grant relief from sanctions where it is equitable to do, taking
into account any prejudice to the innocent party.
D. The court may grant relief from sanctions provided the failure to comply
was not intentional and if there is a good explanation for the failure to comply.
Feedback
ANSWER: [B] Answer [B] accurately states the test in CPR r 3.9(1). APA Civil
Procedure para 37.26.
The correct answer is: The court will consider all the circumstances of the
case so as to deal justly with the application, including the need for litigation to
be conducted efficiently and at proportionate cost and the need to enforce
compliance with rules, practice directions and orders.



5/10 = 50%