Civil Litigation SAQ Mock

  1. Graham has brought a claim for personal injuries against Deborah in the Bow County Court.In her Defence Deborah has admitted liability and causing at least some injury, but disputes quantum. In the accident Graham suffered an unusual shoulder injury. The special damages claim is alleged to come to £200,000.

    When researching quantum you find a very similar comparable case in Kemp & Kemp, which was decided in 1990, where the judge awarded £18,000 for pain, suffering and loss of amenity.

    Graham has been unemployed since losing his job after the accident. Deborah’s solicitors have written to Graham’s solicitors asking Graham to submit to a medical examination and MRI scan. Graham is nervous about confined spaces, and he has refused to see Deborah’s consultant because he does not want the MRI scan. These and other difficulties mean the trial on quantum is unlikely to take place for at least another 18 months.

    (a)  Other than comparable cases and sources of comparable cases, what is the main source of information on how damages for pain, suffering and loss of amenity are quantified which can be used in personal injuries cases? [1 mark]
    a)   JSB Guidelines (1 mark)
  2. (b)  Explain how the award of £18,000 in the comparable case would be adjusted to bring it up to date, and why such adjustments are necessary. [3 marks]
    • a)   Heil v Rankin uplift (1 mark) explanation of what it is (1 mark) because pre-March 2000 awards had fallen behind inflation over
    • a number of years / Law Commission Report (1 mark); also to adjust for inflation generally since 1990 (1 mark) using the RPI index (1 mark).
  3. (c)  Advise Graham on the nature of any application that may be made to
    seek at least some money from Deborah’s insurers now, and the tests that
    will be applied in deciding:

    (i) whether to make an order; and

    (ii) for how much.
    Interim payment (1 mark).

    Admission of liability CPR, r. 25.7(1)(a) (1 mark)(0.5 mark for saying Graham "would obtain judgment", r 25.7(1)(c)).

    Reasonable proportion of total damages, r. 25.7(4) (1 mark)).
  4. (d)  Advise Graham on whether he is at risk of any application on behalf of Deborah in respect of the medical examination and MRI scan, and the nature of the most likely application.

    [3 marks]
    Stay pending consent to the medical examination (1 mark), Edmeades v Thames Board Mills, if just and reasonable (1mark) – necessary for just disposal of claim? (1 mark), reasonable to request the MRI? (1 mark). See Starr v NCB.
  5. Michelle, aged 25 years, was injured when she slipped on ice on 20 December 2008. The accident happened in the car park at the premises of Khan and Evett, a firm of chartered accountants run in partnership by Mr Khan and Mr Evett.

    You have been instructed to advise Mr Khan and Mr Evett. A county court claim form seeking damages for personal injuries naming Michelle as the claimant and "Khan & Evett Ltd" as the defendant has been served on your clients. The claim form was issued on 10January 2012. Inquiries by your Instructing Solicitors have established that the claim form was left at the court office by Michelle's solicitors, together with all the documents and payment required for the claim form to be issued, on 4 January 2012. It is now 30 January2012.

    Your Instructing Solicitors have already written to Michelle's solicitors to say the claim is time-barred. Michelle's solicitors replied to the effect that they did not issue the claim form between November 2011 and the beginning of January 2012 because they were seeking to comply with the requirements of the relevant pre-action protocol. (a)  How long is the primary limitation period in this case? [1 mark]
    3 years(Limitation Act 1980, s. 11) (1 mark)
  6. (b)  When did time stop running for limitation purposes in Michelle's case, and why?
    • (b) On 4 January 2012, when all the documents necessary for issuing the
    • claim were delivered to the court (1 mark),

    because time stops running when the claim is "brought" (the word used in the Limitation Act 1980) rather than when the claim is issued (1 mark). APA Civil Procedure, para 7.38; Barnes v St Helens MBC [2007] 1 WLR 879.   Max 2 marks.
  7. (c)  What does the relevant pre-action protocol say about seeking to comply with the pre-action protocol before the expiry of the limitation period?

    [2 marks]
    (c) Compliance with the protocols does not excuse not bringing a claim within the limitation period (1 mark) (PD Pre-action Protocols, paras 9.5 and 9.6). Michelle's solicitor should have given as much notice of the intention to issue proceedings as was practicable (1 mark),and the parties should consider whether the court should be invited to extend time or grant a stay to allow the recommended steps to take place (1 mark) PI Protocol, para 2.11)
  8. (d)  Describe the procedure for bringing an application to strike out.
    (d) Application notice (0.5 mark) supported by written evidence (0.5 mark), giving 3 clear days' notice (0.5 mark) under CPR Part 23. Heard by a district judge (0.5 mark). PD3A, para 5.2 says thatmany applications under r. 3.4(2) can be made without evidence (0.5 mark), but advises applicants toconsider whether there are facts that need to be proved, in which case writtenevidence will be required (0.5 mark).
  9. (e)  Explain the grounds your clients could use for striking out this claim and how they apply to the facts of this case.

    [4 marks]
    (e) There are two grounds for striking out in this case:

    (i) No reasonable cause of action (CPR, r. 3.4(2)(b))(1 mark) on the basis the wrong defendant has been named. Being a partnership the firm should have been named in the firm name (eg "Khan and Evett (a firm)"), see PD 7A, para 5A.3(1 mark). Khan & Evett Ltd would be the name of a company registered under the Companies Acts.

    (ii) Abuse of process because the claim was brought when time-barred (CPR, r. 3.4(2)(b)); APA Civil Procedure, para 22.22; Ronex Properties v John Laing Construction[1983] QB 398 (1 mark). Limitation is a procedural defence (1 mark), so technically there is a cause of action even if time barred (1 mark)
  10. Sandra is an international standard sports person. Informed opinion was to the effect that she stood a realistic chance of winning a medal at this year's World Championship in her sport,which will take place in April 2012. Sandra is aged 24 years. Competitors in her sport tend to be at the peak of their game between 23 and 27 years of age. World Championships take place every 4 years.

    Sandra has recently been accused of taking bribes relating to alleged fixing of results of events she has taken part in for betting purposes. Based on these allegations, the governing body of her sport has just decided to suspend her from all competitions.

    Sandra wants to challenge her suspension, and she has issued a High Court claim form for the purpose of enabling her to participate in this year's World Championship. In her claimform she is seeking injunctions:

    (i)  to lift her suspension;
    (ii)  to prevent her governing body adding her to the list of suspended persons; and
    (iii)  to require her governing body to select her to compete in this year's World Championships.

    It is now 30 January 2012. You have been briefed to represent Sandra on an application for interim injunctions broadly in the terms set out above.

    (a)  Advise Sandra on whether the injunctions she seeks are properly characterised as prohibitory or mandatory. Give reasons. [3 marks]
    • A prohibitory injunction requires the respondent to refrain from / stop /
    • be prevented from doing something (1 mark).  For example, preventing
    • the governing body from adding Sandra to the list of suspended persons
    • (injunction (ii)) (1 mark).

    A mandatory injunction requires the respondent to do / must / require specified action (1 mark). For example, requiring the governing body to select Sandra for the World Championships (injunction (iii))(1 mark). Chambers v British Olympic Association [2008] EWHC 2028 (QB). 

    It is the substance of the effect of the order that determines whether it is prohibitory or mandatory, rather than the technical wording used (1 mark).  Injunction (i), lifting the suspension, maybe regarded as borderline. It would be prohibitory if in substance it restrainsthe governing body from suspending Sandra (1mark), whereas it would be mandatory if in substance it requires the governingbody to remove the suspension (1 mark).
  11. (b)  If the judge regards one of the injunctions are prohibitory, what is the name given to the principles that would apply in deciding whether to grant the injunction? [1 mark]
    (b) Normal prohibitory injunctions are governed by the American Cyanamid principles (1 mark).
  12. (c)  If the judge regards one of the injunctions as being mandatory, how will the principles applied by the court differ from those applicable if the injunction had been prohibitory? [2 marks]
    • (c) Traditionally, a court can only grant a mandatory interim injunction
    • if the court feels a high degree of assurance on the merits Shepherd
    • Homes v Sandham [1971] Ch 340, Megarry J. APA Civil Procedure, para
    • 35.84. (1 mark). This is more difficult to establish than the
    • serious question to be tried under American Cyanamid (para 35.34) (1
    • mark). Serious issue to be tried is a low threshold, beinginterpreted as
    • meaning merely not frivolous or vexatious (1 mark).

    National Commercial Bank Jamaica v Olint Corp[2009] 1 WLR 1405, APA Civil Procedure, para 35.85, is to the effect there is no underlying difference between prohibitory and mandatory interim injunctions (1 mark), although Lord Hoffmann said in that case that where the mandatory order is likely to cause irremediable damage the court should be reluctant to grant such an order unless there is a high degree of assurance of success (1 mark). The mandatory nature of the order may be reflected in the discretion to grant the order (1 mark)
  13. (d)  If the judge regards one of the injunctions as having the effect of finally disposing of the claim, how will the principles applied by the court differ from those applicable if the injunction had been prohibitory? [2 marks]
    (d) Cases only come within the final disposal exception where neither side is realistically going to take the case to trial if the interim injunction application went against them (NWL Ltd v Wood [1979] 1WLR 1294 (1 mark). There is some flexibility over the approach to the merits requirement in this category (APA Civil Procedure, para 35.60) (1 mark),but typically the court insists on a very strong case, such as an"overwhelming case" (1 mark)or a case with a "high degree of assurance" (the same as mandatory injunctions, the approach taken in Chambers v British Olympic Association) (1mark). This reflects the need to comply with the fair trial obligation in the ECHR, art 6(1) (1 mark). The final disposal aspect may also be reflected in the discretion to grant the order (1 mark).
  14. (e)  Advise Sandra on the circumstances in which it is permissible to make an application for an interim injunction without notice to the other side, and on whether this is permissible in Sandra's case. [2 marks]
    e) Circumstances justifying an application without notice are (1mark each): 

    • Urgent applications
    • Where there is no defendant on the record
    • Where the application has to be kept secret in order to be effective
    • Where any rule, PD or court order allows (r. 23.4(2))]
    • Where a hearing has already been fixed, and an application then arises with insufficient time (PD 23A, para 2.10)
    • Where the overriding objective is best furthered by doing so (PD 23A, para 3)
    • By consent of all parties (PD 23A, para 3)
    • With the permission of the court (PD 23A, para 3)

    None of these apply on the facts, so the application should be made on notice (1 mark).
  15. You are instructed on behalf of Smithers-Jones Films plc, a fairly new film company which has made a number of commercially successful films in the last 2 to 3 years. Your client is concerned that David Watts is infringing its intellectual property rights in its films by making large numbers of copies of your client's recent films which David Watts sells through street traders in London. Smithers-Jones Films plc estimates that film piracy has cost it about £5million so far, and that David Watts is probably responsible for about 20% of its loss in revenue. You have advised Smithers-Jones Films plc that it should apply for a search order against David Watts.

    (a)  Which court is the appropriate court for this claim? Be as precise as possible. [1 mark, 1/2 mark per point]
    (a) The High Court (it is potentially a £1million claim) (0.5 mark); Chancery Division (intellectual property rights claim: SCA 1981, sch 1) (0.5 mark).
  16. (b)  What are the requirements that have to be established by Smithers-Jones Films plc if it is to obtain the search order? [3 marks]
    (b) The requirements for as earch order are (see APA Civil Procedure, para 37.07, based on Anton Piller v Manufacturing Processes[1976] Ch 55) (1 mark each): 

    An extremely strong prima facie case on the merits

    The defendant David Watts' activities must result in very serious potential or actual harm to the claimant's interests

    Clear evidence that incriminating documents or items are in the defendant's possession

    A real possibility that such evidence may be destroyed before any application on notice can be made

    Adequate protection from the claimant's undertaking in damages
  17. (c)  Describe what should happen at the point when the search order is executed. [3 marks]
    (c) There must be a supervising solicitor, who is independent from Smithers-Jones Films plc and its solicitors (1 mark).

    On procedure, 1 mark for each of the following: 

    Supervising solicitor must serve the order on D

    Execution must be in office hours, typically in the morning and not before 9.30 am

    At the same time the supervising solicitor must serve various other documents (set out in Sch D para 1 of the standard search order), including the claim form, affidavits etc

    Supervising solicitor offers to explain to D the meaning of the search order fairly and in everyday language

    Supervising solicitor informs D of D's right to take legal advice

    Supervising solicitor explains to D that D may be entitled to avail himself of the privilege against self-incrimination and LPP

    Supervising solicitor explains about D's right to apply to vary or discharge the search order

    Membership of the search party should be defined in the search order
  18. (d)  When Smithers-Jones Films plc seeks to execute the search order David Watts refuses to co-operate on the ground that any material covered by the search order will be protected by the privilege against self-incrimination. What is this privilege, and does it apply in this case? [3 marks]
    (d) The privilege against self-incrimination allows a person to refuse to answer questions or to provide documents or other evidence (1 mark)which would have a tendency to expose him or his spouse / civil partner to any criminal charge, penalty or forfeiture (1mark) which the judge regards as reasonably likely to be preferred or sued for (1 mark) (Blunt v Park Lane Hotel Ltd [1942] 2 KB 253; APA Civil Procedure,para 29.27).  It has been effectively removed from civil claims for breach of intellectual property rights by the SCA1981, s. 72 (1 mark). The effect is that the privilege does not operate to restrict the execution of a search order, but the materials (or answers) provided by D cannot be used against D or his spouse /civil partner in any criminal proceedings (1 mark).
  19. Chase Augusta Limited ("CAL") has brought a claim for damages for negligence arising out of a fire that severely damaged the offices owned by CAL against Emmons Site Clearance plc ("ESCP"). The day after the fire CAL's insurers, Comprehensive Insurers plc ("Insurers")commissioned Fiona, a forensic fire investigator, to visit CAL's damaged offices and prepare a report on the cause of the fire and the extent of the damage. Insurers regularly commission this type of report to assist with its assessment of liability, and require the expert who prepares the report to do so on a standard report form. This contains the following words in bold at the foot of each page: "Prepared for the information of the solicitors for Comprehensive Insurers plc".

    The claim between CAL and ESCP has reached the disclosure of documents stage. There has been an order for standard disclosure. You have been instructed to advise CAL and Insurers. Some months ago you provided your clients with an Opinion on Liability.

    (a)  Does Fiona's report have to be provided to ESCP as part of the disclosure process?Give reasons.
    • (a) Fiona's report is probably covered by the litigation limb of legal professional privilege (LPP) (1 mark). This covers confidential communications between lawyer or client and third parties (here Fiona) (1 mark) where the dominant purpose of the
    • communication is to obtain legal advice (1 mark) for the purpose of contemplated or pending litigation (1 mark).  See APA Civil Procedure, para 29.40. Where a fire is said to have been caused by an outside party it should not be difficult to persuade the court that litigation was at least contemplated when Fiona was commissioned to make her report (1 mark). The endorsement on the standard report form ("Prepared for the information of the solicitors for Comprehensive Insurers plc") is very similar to that used by the BRB in Waugh v BRB [1980] AC 521, where it was not enough to protect the report from inspection (1 mark). This was because "dominant purpose" means there has
    • to be a "clear paramountcy" in the legal advice purpose (1 mark), but in Waugh the BRB said that it regarded obtaining legal advice as onlyof equal importance to its health and safety purpose in commissioning a report into the cause of an accident on the railway (1 mark). The case in the SAQ is far closer to Highgrade Traders Ltd [1984] BCLC 151 (referred to in APA CivilProcedure, para 29.42), where a fire investigation report prepared for aninsurer was held to be privileged because the dominant purpose was to refer thereport to solicitors for legal advice on liability for the fire (rather thanfuture fire prevention). (1 mark)
  20. (b)  Does your Opinion on Liability have to be provided to ESCP as part of the disclosure process? Give reasons. [3 marks]
    (b) Your Opinion on Liability should be protected from inspection by the legal advice limb of LPP (1 mark). This covers confidential communications (1 mark) between a legal representative and a client for the purpose of giving or receiving legal advice (1 mark). There is no need for legal proceedings, not even contemplated legal proceedings (1 mark).  Legal advice includes telling the client about the law (Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610) (1 mark), which plainly is what is done in an Opinion
  21. Assume the case has reached trial. You intend to call four witnesses to deal with the facts relating to the fire. Your second witness is William, who was a security officer employed by CAL and who was on duty at the time of the fire. He gives his name and address in answer to your initial questions. In answer to your next question he says he does not remember the fire. In answer to your next question he says he does not remember signing a witness statement. When you ask him to turn to the statement in the trial bundle he takes about 4 minutes to find the page. He says the signature "might be" his. He says he does not recognise the document.

    Assume there is no suggestion that William has any relevant medical condition, and that he appeared to have a full recollection of the relevant events a short time before the trial.

    (c) Describe the type of application you should consider making about William's evidence. In this context there is an important distinction. What is this distinction, and what is its significance? [3 marks]
    (c) The distinction referred to in this question is that between unfavourable and hostile witnesses(1 mark). William will be unfavourable if he has simply failed to come up to proof (BCP para 47.63) (1 mark). There is a rule against attacking the credit of the witnesses called by your party, so this cannot bedone against William (1 mark) (Criminal Procedure Act 1865, s. 3). However, it is permissible to call the other2 witnesses on the facts relating to the fire, otherwise there would be an unjustified importance attached on which witness was called first (Ewer v Ambrose (1825)) (1 mark). 

    William will be hostile if he is regarded by the judge as showing no desire to tell the truth at the instance of the party calling him (1mark).  It is also probably necessary for the witness to display a hostile animus to the party calling him (Stephen's Digest of the Law of Evidence; BCP para 47.64) (1 mark).  If so, William maybe invited to refresh his memory (1 mark),but ultimately his previous statement may be put to him (Criminal Procedure Act1865, s 3) (1 mark) and he may have leading questions put to him by counsel for CAL (1 mark).
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Civil Litigation SAQ Mock
Civil Litigation