Civil Paper 2 2021 (Ans)[2687] PDF

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Bar Training Courseand Bar Transfer TestExamination 2021–CIVIL LITIGATIONBSB Full MarkerMOCK September 20212 – 4THIS PAGE IS BLANKPlease continue to the next pageQUESTION 1SA8 STATEMENTS OF CASECatherine has brought a claim for damages for personal injury against Mangal Meze Limited (“MM”), which op...

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Bar Training Course and Bar Transfer Test Examination 2021–22

CIVIL LITIGATION BSB Full Marker MOCK September 2021 2.00pm – 4.30pm

Civil Litigation September 2021 MOCK Paper 2 THIS PAGE IS BLANK

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Civil Litigation September 2021 MOCK Paper 2

Civil Litigation Multiple Choice Exam Candidate instructions 1.

This exam comprises 40 multiple choice questions (MCQs). Questions 6 to 40 are questions based on rolling case scenarios (RCSs). There are seven MCQs for each RCS.

2.

You have two hours and 30 minutes to complete this exam.

3.

You MUST NOT remove the exam paper or the MCQ answer sheet from the examination centre

4.

Use boxes 1–40 on the MCQ answer sheet to record your answers.

5.

This is an open book examination. You are allowed to use:  a copy of the White Book, which can be highlighted and annotated  sticky notes, which can be used to mark sections of the White Book  sticky notes with annotations and notes. You are not allowed to use any additional loose material.

6.

You must use a pencil to answer.

7.

Each question requires ONLY ONE response. If you give more than one answer per question, no mark will be given.

8.

One mark is given for each correct answer.

9.

This exam is not negatively marked (marks will NOT be deducted for wrong answers or no answer), therefore you are strongly advised to attempt ALL the questions.

10. If you do not answer a question, no mark will be given.

Note: The answer sheet is designed to be machine readable. If you make a mistake you must rub out that answer. If your final answer choice is unclear this may result in no marks being awarded for the question.

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Civil Litigation September 2021 MOCK Paper 2 QUESTION 1 SA8 STATEMENTS OF CASE Catherine has brought a claim for damages for personal injury against Mangal Meze Limited (“MM”), which operates a restaurant where she suffered an accident. In paragraph 2 of her particulars of claim she set out the circumstances of the accident, in which she slipped on water in a corridor while on her way to the toilet. In paragraph 3, she alleged that the accident was caused by MM’s breach of its statutory duty under the Occupiers’ Liability Act 1957 and set out particulars of the breach in sub-paragraphs (a)–(e). In its defence, MM did not admit the facts stated in paragraph 2 of the particulars of claim. In response to paragraph 3, MM denied breach of statutory duty and stated that on the doors leading to the toilets there were signs saying ‘Caution, cleaning in progress’, that further signs had been put out stating ‘Caution, wet floor’ and that in all the circumstances it took reasonable care to ensure Catherine’s safety and that of the general public. After filing and serving the defence, MM’s solicitors realised that they had failed to deal with paragraph 3(d) of the particulars of claim, which alleged that MM ‘allowed pools of water to gather dangerously in the corridor’. MM states that any water present in the corridor was as a result of the cleaning process, of which adequate warning had been given. What is the best advice to give to MM’s solicitors as to the next step to take in order to deal with the failure to respond to paragraph 3(d)? [A] They should ask for Catherine’s written consent to amend their defence. [B]

They should make an application to the court to ask for permission to amend their defence.

[C]

They should make an application to amend, as, unless the defence is amended, the allegation will be taken as admitted.

[D]

The nature of their defence means the allegation shall be taken as denied without the need to amend their defence.

ANSWER [A]

They should ask for Catherine's written consent to amend their defence.

CPR 17.1 (2)(a)

[A]

is the best advice. Catherine may consent to the amendment and it is the most appropriate thing to do to ask her first. CPR 17.1 (2)(a)

[B]

is not the best advice. There is no need to incur the costs of an application to court. Asking Catherine for written consent is more efficient.

[C]

is wrong. As the nature of the case has been set out, the allegation shall be taken as requiring proof. CPR 16.5 (3)-(5) Please continue to the next page Page 4 of 74

Civil Litigation September 2021 MOCK Paper 2 [D]

is wrong. See C above.

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Civil Litigation September 2021 MOCK Paper 2 QUESTION 2 SA10 AMENDMENT Rahul has sued his local Council (“the Council”), having tripped on an uneven pavement and broken his ankle. The Council originally served a defence defending the claim on the basis that the measurement of the ‘trip’ was only 1.5cm and, therefore, was not a tripping hazard. The Council has now found its inspection records and has applied to the court to amend its defence to include an additional argument, that it also carried out adequate inspections of the pavement. What order is the court most likely to make? [A] That the Council may amend its defence with no order as to costs. [B]

That the Council may amend its defence and the costs of the application will be costs in the case.

[C]

That the Council may amend its defence but must pay the costs of the application and the costs arising from it.

[D]

That the Council may amend its defence and the costs of the application will be reserved until the final hearing.

ANSWER [C]

That the Council may amend its defence but must pay the costs of the application and the costs arising from it.

See: PD17.

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Civil Litigation September 2021 MOCK Paper 2 QUESTION 3 SA13 CASE MANAGEMENT You have recently been instructed by Farnham Estates (“FE”), the Defendant to a personal injury claim. Its Managing Director, Andrew, has been conducting proceedings so far. Donna, the Claimant, is a litigant in person. After examining the papers, you realise that Donna has failed to comply with a number of directions the court made at the first case management conference. Donna failed to file a list of documents on time, and is yet to file or serve witness statements. Two months have passed since the court’s direction deadline for serving witness statements expired. Andrew tells you in conference that FE is yet to file or serve witness statements too. He does not anticipate any problems in doing so immediately as all relevant witness statements have already been drafted. They were prepared for the personal injury claim they successfully defended at trial on the same facts brought by Donna two years ago. You notice in the particulars of claim that Donna has failed to attach the medical report on which she purports to rely. Andrew informs you that he wishes to make an application to strike out Donna’s claim and asks for your advice. On which ground is his application most likely to succeed? [A] That the claim be struck out for failure to comply with the court order as to the date by which the list of documents should be filed. [B]

That the claim be struck out for failure to serve the witness statements, which amounts to an abuse of process.

[C]

That the claim be struck out as it is an attempt to re-litigate previously decided matters, which amounts to an abuse of process.

[D]

That the claim be struck out as the particulars of claim do not comply with the relevant Practice Direction.

ANSWER [C]

That the claim be struck out as it is an attempt to re-litigate previously decided matters, which amounts to an abuse of process.

White Book 2021 at 3.4.5 See commentary in the White Book 2021 at 3.4.5 - (first 3 paragraphs) ; Commentary to explain why [D] is incorrect in the White Book 2021 at 3.4.1

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Civil Litigation September 2021 MOCK Paper 2 QUESTION 4 SA21 CIVIL TRIAL AND EVIDENCE You are instructed by Mortimer, a solicitor, who is acting on behalf of the Claimant in a fast track personal injury claim. In accordance with the fast track directions, Mortimer has served statements from Ralph and June in addition to his client’s statement. Mortimer has also served a notice to admit all the relevant facts contained within Ralph’s statement. No reply is received to the notice. The trial is listed in 25 days’ time. Mortimer asks for your advice as to whether, in the circumstances, Ralph and June need to be called to give evidence at trial. What is the correct advice to give Mortimer as to whether it is necessary to call the witnesses? [A] June needs to be called as a witness, but Ralph does not. [B]

It is not necessary to call Ralph or June as facts can be proved at any hearing by the witnesses’ evidence in writing, which has been served.

[C]

June needs to be called as a witness. Ralph will also need to be called if the Defendant responds to the notice to admit, requiring that the facts stated in the notice be proved.

[D]

It is necessary to call Ralph and June if it is intended to rely on their evidence.

ANSWER [D]

It is necessary to call Ralph and June if it is intended to rely on their evidence. CPR 32.5(1). [A]

This is wrong. Although CPR 32.18 provides that a party may serve notice on another party requiring him to admit the facts specified in the notice and the notice must be served no later than 21 days before the trial (which it has been here), the effect of that does not override the operation of CPR 32.2 and CPR 32.5 and the witnesses must be called to prove the facts. There is no obligation on the party on whom the notice is served to respond to it. If the witnesses are called but only to prove those facts contained within the notice to admit facts, this may potentially seriously limit the client's case especially as the burden would ordinarily rest on the claimant to prove the case.

[B]

This is wrong. CPR 32.2 (1) provides that the general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved (a) at trial, by their oral evidence given in public and (b) at any other hearing, by their evidence in writing. The distractor here refers to "any hearing", which is wrong. Here, there is obviously to be a trial and therefore (a) applies as does CPR 32.5 which provides that if (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence

[C]

This is wrong. See CPR 32.18 Please continue to the next page Page 8 of 74

Civil Litigation September 2021 MOCK Paper 2

[D]

This is the correct answer. A party cannot be compelled to call its own witnesses. However, if it is intended to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence – CPR 32.5(1). The notice to admit facts is an irrelevance on the facts.

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Civil Litigation September 2021 MOCK Paper 2 QUESTION 5 SA20 – Expert evidence Your client is the Claimant and has brought a claim in the County Court against the First and Second Defendant. All three parties were given permission to rely on expert evidence. After the exchange of expert reports, the Second Defendant admitted liability and the Claimant discontinued his claim against the First Defendant. Your client asks whether he can rely on the expert’s report which was served by the First Defendant while she was still a party to the proceedings. Which of the following best answers your client’s question? [A] The Court will allow your client to rely on the expert’s report without specific permission, but your client should advise the Second Defendant that he intends to rely on that report and the purpose for doing so. [B]

Your client will be permitted to use the expert’s report as evidence at trial provided that the First Defendant gives her permission for the report to be used.

[C]

Your client will only be permitted to rely on the expert’s report if he obtains permission of the Court to do so.

[D]

Your client may rely on the expert’s report as evidence at trial without permission of the Court but only with the written agreement of both the First and Second Defendants.

Correct answer: [A]

The court will allow your client to rely upon the expert’s report without specific permission, but your client should advise the Second Defendant that he intends to rely upon that report and the purpose for doing so.

Commentary at 35.11.1 of the White Book 2021 [A]

This is best answer to the client’s question as, under CPR 35.11, where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial. The commentary at 35.11.1 of the White Book 2021 refers to the case of Gurney Consulting Engineers v Gleeds Health and Safety Limited [2006] EWHC 43 (TCC) where it was decided that it was not necessary for a party to seek permission to rely upon an expert’s report which had been disclosed by a party who had ceased to be involved in the proceedings, even though the court had not given specific permission for the remaining parties to rely upon those reports, but the party seeking to so rely should advise the other remaining parties which reports they intended to rely upon and for what purpose.

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Civil Litigation September 2021 MOCK Paper 2 [B]

This is wrong because there is nothing under CPR 35.11 which requires the parties to have the court’s and the First Defendant’s permission to rely upon an expert’s report disclosed by another party. (CPR 35.11 and White Book 2021 at 35.11.1).

[C]

This is wrong because there is nothing under CPR 35.11 which requires the parties to have the court’s permission to rely upon an expert’s report disclosed by another party, even though there is the expectation that the party seeking to rely upon the report will inform the remaining parties. (CPR 35.11 and White Book 2021 at 35.11.1).

[D]

This is wrong because there is no requirement under CPR 35.11 for the party wishing to rely upon the report needing to seek the agreement of the First and Second Defendants.

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Civil Litigation September 2021 MOCK Paper 2 RCS 1: Jen Art Group Limited v. Best Art Supplies Jenny is the managing director of an art school, Jen Art Group Limited (“JAG”). Jenny ordered a supply of art materials for the school from Balvinder, a sole trader, who trades as Best Art Supplies, at a total cost of £106,000. Jenny paid in full and Balvinder agreed to deliver the items the following day. When the goods arrived, Jenny discovered that most of the paint containers had split during transit causing extensive damage to all the items in the crate, rendering them unusable. She asked Balvinder to either refund the price paid or replace everything she had ordered. Balvinder refused to do so, contending that the risk of any damage to the goods during transit was to be borne by JAG. Balvinder also argued that even if he bore the risk during transit, JAG would only be entitled to reject the paint containers that had split and not the remaining goods which were protected by plastic during transit. In pre-action correspondence, on two separate occasions, Balvinder offered to take part in a mediation to try to resolve the issues in dispute. Jenny contends that the terms of the contract are unclear and is keen to have the dispute aired and resolved in court. She did not want to engage in mediation and did not respond to this aspect of the correspondence. You are now instructed by Balvinder. Balvinder asks for your advice as to how Jenny’s failure to respond to his request to use alternative dispute resolution (ADR) might affect any order as to costs in the event that JAG succeeded in its claim.

QUESTION 6 SA23 (also overlaps with SA1 (re sanctions for ADR) and SA3 (ADR prior to issue) What is the best advice to give Balvinder as to the reason why JAG is likely to be penalised in costs? JAG is likely to be penalised in costs because [A] the Practice Direction – Pre-Action Conduct and Protocols requires parties to engage in mediation or some other form of ADR to enable them to settle their dispute before issuing proceedings. [B]

the court always regards silence in the face of an invitation to use ADR as itself unreasonable, regardless of whether there was a good reason for refusing to engage in mediation.

[C]

Balvinder is likely to persuade the court that JAG Ltd acted unreasonably in refusing ADR in all the circumstances of the case applying the Halsey factors and, as a general rule, silence in the face of an invitation to use ADR is likely in itself to be regarded as unreasonable.

[D]

the court requires parties to consider the possibility of settlement at all times and if there is non-compliance the court can make an order that the party at fault pays the costs of the proceedings or part of the costs of the other party.

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Civil Litigation September 2021 MOCK Paper 2 ANSWER: [C]

Balvinder is likely to persuade the court that JAG acted unreasonably in refusing ADR in all the circumstances of the case applying the Halsey factors and, as a general rule, silence in the face of an invitation to use ADR is likely in itself to be regarded as unreasonable.

Paras 2 and 3 of the White Book 2021 at 44.2.24 [A]

This is not the best answer. The PD requires parties to consider not engage in ADR. PD-Pre-Action Conduct and Protocols C1-006 para 8 of the White Book 2021

[B]

This is not correct. Although as a general rule , silence in the face of an invitation to participate in ADR is regarded as unreasonable (see PGF II SA v OMFS noted in the White Book 2021 at 44.2.24) the use of the word “always” makes this statement wrong.

[C]

This is the best answer – the burden of showing the winning party should face a costs sanction for unreasonable refusal to use ADR is on the unsuccessful party (Best Art Limited). The court will look at the Halsey factors (see Paras 2 and 3 of the White Book 2021 at 44.2.24) and will also take into account the fact that, as a general rule, a failure to respond at all to an invitation to use ADR is likely to be unreasonable ( Halsey as extended by PGF II SA (White Book 2021 at 44.2.24, para 3), so this is the best/most accurate answer. See also PD Pre-Action Conduct and Protocols, para 11 (in the White Book 2021 at C1-006)

[D]

This is also a true statement (see PD Pre Action Conduct and Protocols, paras 9, 14 and 16 in the White Book 2021 at C1-006 and C1-008) but not the best answer here as it does not mention the Halsey test, which sets out the principles on which an adverse costs order would be made for refusing ADR.

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Civil Litigation September 2021 MOCK Paper 2 Balvinder accepts that JAG is likely to issue proceedings against him and asks where the claim will be started.

QUESTION 7 SA1 General matters SBA What is the most appropriate response to his query? [A] The claim may be started in t...