Dispute resolution MCQ questions PDF

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Dispute resolution MCQ questions True or false: When an application to the court is necessary for a judgment or order to be made in the terms agreed by the parties, an oral hearing must take place. False (Rule 40.6(5) Tony is on trial for burglary. When originally interviewed at the police station Tony put forward a defence of alibi. An application was made by the prosecution to adduce evidence of his previous convictions at trial under s.101(1)(d). Tony has two previous convictions. One for sexual assault on a girl under the age of 16. He was convicted of this offence 6 months ago having pleaded not guilty and given an oath and the other was burglary, 12 years ago. On that occasion Tony pleased not guilty. What arguments should be defence use to argue against admission of bad character evidence? That the admission of both convictions would have such an adverse effect on the fairness of the proceedings that the court ought not to admit them. ⮚ That by reason of passage of time the burglary conviction, it would be unjust for it to be admitted in this case. What must someone do to challenge the admissibility of an admission if the interviewing officer denied legal advice and threatened to her overnight at the police station if she did not co-operate? They can challenge the admissibility of the admission under section 76(2)(b) PACE 1984 and it will be ruled to be inadmissible if the defence can prove that it was obtained in circumstances that would render it unreliable. Kevin is charged with murder. The prosecution allege that he stabbed his victim, Martin Urwin witnessed the incident and identified Kevin as the attacker but Kevin denies that he was involved. Kevin is not available because he has emigrated to Frank. What steps must the prosecution take to use Martin’s evidence in his absence? The prosecution will need to explain why it is not reasonably practicable to secure Martin’s attendance at trial, otherwise, the fact that the evidence is first hand hearsay and that Martin is outside of the United Kingdom will not be sufficient to admit the evidence under section 116 CJA 2003. Dennis is on trial accused of fraud by false representation, the investigating officer will

give evidence when he was arrested Dennis said ‘fair enough. I knew you’d catch up with me sooner or later. I should have covered my tracks better. Dennis denies making this statement and says the officer did not caution him and that he fabricated evidence against him. What must the defence prove to exclude the evidence? In seeking to exclude the evidence, the defence will rely on provisions of s.78 PACE 1984 as they will not be able to successfully argue that it ought to be excluded in evidence under section 76(2). True or false: Business documents are always admissible in evidence as an exception to the hearsay rule? False ⮚ Although business documents are usually admissible there are exceptions to the general rule. Yanni is on trial in the magistrates court charged with an offence of wounding, contray to section 20 offences against the person act. Yanni accepts he inflicted a wound against his victim, but argues he did so through self-defence. What must the prosecution prove? The prosecution has to prove the elements of section 20 offence and disprove the defence of self-defence beyond a reasonable doubt, provided Yanni has first discharged his evidential burden in relation to self-defence. Dave is charged with an offence of possession of cocaine with intent to supply, contrary to s.5 Miuse Drugs Act. Dave have pleased not guilty. The CPS has disclosed a list of previous convictions which doesn’t include a recent conviction of possession of cannabis with intent to supply. If the CPS find out what are they likely to argue? If the CPS find out about the conviction for possession of cannabis, they are likely to argue that it should be admissible as evidence at Dave’s trial as it establishes a propensity to commit the same type of offence which is he is now charged. In relation to Section 117 CJA 2003, which is wrong? A) S.117 only applies to documentary hearsay and not oral. B) The supplier of the information must have done so in the course of his trade, business, occupation or as a holder of a paid or unpaid office. C) Each intermediary who receives and passes on the information must do so in the

course of his trade, business, profession, occupation or as the holder of a paid or unpaid office. D) The supplier of the information and creator/receiver of the relevant business document may be the same. B ⇒ The test set out in option B is the test for the creator/receiver of the document, not the supplier. ⇒ So far as the supplier is concerned, the main requirement is that he has personal knowledge of the information he supplies (s.117(2)(b)). What is the limitation period for breach of contract under the Limitation Act 1980? Has 6 years from the date of the breach to bring a claim. What is a conditional fee agreement also known as? ‘No win, no fee’ You act for a prospective claimant. The potential defendant is not legally represented. You are writing a letter before claim where the practice direction – pre-action conduct and protocols applies. True or false? ⇒ True True or false: It is a potential disadvantage of mediation that the opponent can withdraw at any time. True True or false: If the client reasonably believes that he or she has a watertight case, this may be sufficient justification to refuse to mediate. True Which one of the following methods of ADR best describes the description below: Typically a third party has written statement from the parties, discusses the case with each party without a prejudice basis, identifies areas of disagreement and importance, and tries to move the parties towards constructive solutions.

Mediation Your firm’s commercial department is acting for Ms Y in negotiations with several publisher’s to publish her new book. Your firm’s litigation department today has been asked by Mr X to act for him. Mr X claims that, in writing her new book, Mrs Y has breached her copyright by claiming that he wrote several years ago. He wants to stop her publishing and to claim damages. Can you act? ⇒ A firm will have a conflict of interest if it acts for both Ms Y + Mr X ⇒ The court must seek to give effect to the overriding objective when it exercises any power given to it under the rules, or interprets any rule. ⇒ Early in a dispute resolution matter a solicitor should advise his client to preserve documents relating to the dispute, even if those documents would harm the client’s case. What is the overriding objective of the CPR 1998? The court must deal with cases justly and at proportionate cost. What is the golden rule when it comes to fee paying? The loser pays the winner’s costs. What are some benefits and drawbacks of using DBA (damages based agreements? ⇒ ⇒ ⇒ ⇒

Only enforceable if it meets a number of different requirements. Attractive to the client because they aren’t taking the risks. Can lead to injustice to a client if the case is settled very quickly. It is a massive risk to the firm.

What is a DBA (damages based agreement) and how often are they used? ⇒ If a client recovers damages, the solicitors fee is an agreed percentage up to 50% of the damages. ⇒ It is very rarely used. What is after the event insurance? ⇒ When insurers charge an insurance premium and if they lose the case then the insurers will pay the disbursements. What are the elements to a breach claim? 1. 2. 3. 4.

Existence of a contract. Identify the relevant terms. Explain how the relevant terms have been breached. Breached caused the loss (consequence of breach)

5. Amount of loss. 6. Loss must not be too remote. If it is a contract between two parties it is likely to be misrepresentation or breach? ⇒ Likely to be breach of contract. When is the indisputable presumption that the claim form is deemed to have been served? ⇒ Served on the second business day. What is the deemed date of service for documents other than a claim form? For personal service? ⇒ If the document is served personally before 4:30pm on a business day, on that day; or in any other case, on the next business day after that day. What is the deemed date of service for documents other than a claim form? For first class service? ⇒ The second day after it was posted, left with, or delivered to or collected by the service provider provided that day is a business day; or if not, the next business day after that day. What is the deemed date of service for documents other than a claim form? For delivering the document to or leaving it at a permitted address. ⇒ If it is delivered to or left at the permitted address on a business day before 4:30pm, on that day, or in any other case, on the next business day after that day. What is the deemed date of service for documents other than a claim form? For document exchange? The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day. What is the deemed date of service for documents other than a claim form? For Fax? ⇒ If the transmission of the fax is completed on a business day before 4:30pm, on that day; or in any other case, on the next business day after the day on which it was transmitted. What is implied if a paragraph is not responded to (i.e. admitted or denied) on a defence?

It will be taken as being admitted. How long do you have to respond to the particulars of claim with an acknowledgment of service? 14 days. How long does the defendant have to respond with a defence to the particulars of claim? 28 days. How many days is there to serve the particulars of claim after the claim form? ⇒ 14 days to serve the particulars of claim. What is a statement of case based on? ⇒ Facts not evidence. If a case is referred to the high court which court will always be used? - Queen’s bench division. In 2016 Renzo purchased 55 rolls of material from Fabrics. The material was delivered on 1st September 2017 but nearly all of them were found to be faulty. Your client now wishes to issue proceedings to recover damages, when must this be done by? Renzo has until 4th October 2022 to start proceedings. ⇒ As it is a claim for breach of contract Renzo has 6 years from the date of the breach. Set out in the CPR 1.1(2) how are some of the ways the court achieve the overriding principle? CPR 1.1(2) (a) Ensuring the parties are on equal footing. (b) Saving expense. (c) Dealing with the case in ways which are proportionate – (i) To the amount of money involved. (ii) To the importance of the case. (iii) To the complexity of the issues; and (iv) To the financial position of each party. (d) Ensuring that it is dealt with expeditiously and fairly. (e) Allotting to it an appropriate share of the court’s resources.

What is final offer arbitration? ⇒ Where a third party is instructed to choose between settlement terms proposed by each of the parties. What is med-arb (mediation-arbitration)? ⇒ Where the parties agree to attempt mediation first and if that fails to refer the matter to arbitration. What is a mini-trial? ⇒ Where a third party sits as a chairman of a tribunal with a senior representative of both parties. What is judicial appraisal? ⇒ Where a legal expert is asked to offer a preliminarily view of the parties’ legal positions. What is an early neutral evaluation? ⇒ Where shortly after a dispute arises the parties ask a third party to give a preliminarily view of their positions. True or false: If the claimant fails to obtain a judgment more advantageous than a defendant’s part 36 offer, the court must order that the defendant is entitled to costs (including any recoverable pre-action costs) on indemnity basis and interests on those costs. False ⇒ Rule 36.17(3) provides that where a claimant fails to obtain a judgment more advantageous than a defendant’s part 36 offer, subject to paragraph (7) the court must, unless it considers unjust to do so, order that defendant is entitled to (a) costs (including any recoverable pre-action costs (on the standard basis) from the date on which the relevant period expired and (b) on interest on those costs. True or false: A part 36 offer must be made and accepted using form N242A? False ⇒ See practice direction para 1.1 and the formalities set out in rule 36.5(1). True or false: ⇒ A part 36 offer may be made in respect of the whole, or part of, or any issue that arises in a claim, counter-claim or other additional claim; or an appeal or crossappeal from a decision made at trial. True

Rule 36.2(3). True or false: A part 36 offer which offers to pay or offers to accept a sum of money is normally treated as inclusive of all interest until the relevant period expires True Rule 36.5(4)(a) True or false: The court cannot order the repayment of any part of an interim payment. False - Rule 25.8(2)(a) True or false: The court may order an interim payment in one sum or instalments. True ⇒ Rule 25.6(7) True or false: The court might order an interim payment if satisfied that if the claim went trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom is seeking the order. True - See rule 25(7)(1)(c) True or false: In deciding the amount of security to award, the court may take into account the harm an applicant will suffer if too little security is given and the harm the claimant will suffer if the amount secured is too high. True True or false: The court may only make an order for security of costs under rule 25.12 if it is satisfied that it is just to make such an order and there is reason to believe that the claimant will be unable to pay the defendant’s costs order to do so. False ⇒ Rule 25(1)(a) and (b) and the conditions listed in sub-paragraph 2(a) to (g)

True or false: Any party to any claim may apply under part 24, section II for security of costs of the proceedings. False ⇒ Rule 25.12 provides that a defendant to any claim may apply under section II of Part 25 for security of costs of the proceedings. True or false: The purpose of an order for security of costs is to protect the applicant against the risk of being unable to enforce a costs order made in favour at the conclusion of the case. The order, provided it is complied with, provides the applicant with a fund, normally held by the court against which it can enforce any award of costs it later obtains. True True or false: An application for summary judgment may be based on a point of law (including a question of construction of a document), the evidence which can reasonably be expected to be available at trial or lack of it, or a combination of these. True ⇒ PD 24 para 1.3 True or false: A claimant may not apply for a summary judgment until the defendant against whom the application is made has filed either an acknowledgment of service or a defence. (Unless the court gives permission or a practice direction provides otherwise) True ⇒ Rule 24.4(1) True or false: The court may give summary judgment against a defendant if it is satisfied that the defendant has not shown a reasonable prospect of successfully defending the claim and there is no other good reason why the case should be disposed of at trial. False ⇒ The burden of proof on the application is on the applicant which in this case is the claimant. True or false:

Part 24 sets out the procedure by which the court may decide a claim or a particular issue without a trial. True ⇒ Rule 24.1 True or false: One advantage of a Tomlin order is that the schedule can include agreed terms that are beyond the power of the judge to order in litigation. True ⇒ As is it possible for non-parties to get an order to view the schedule, parties who wish to ensure that the terms remain confidential often record the terms in another document that is referred to in the schedule and held by their solicitors. True or false; A Tomlin Order is a particular type of consent order which stays the proceedings on agreed terms that may include the payment and assessment of costs set out in a schedule. False ⇒ PD 40B paragraph 3.5 which provides that where the parties draw up a consent order in the form of a stay of proceedings on agreed terms, disposing of the proceedings, and where the terms are recorded in a schedule to the order, any direction for (1) payment of money out of court or (2) payment and assessment of costs should be contained in the body of the order and not the schedule. You are drafting the particulars of claim. Which ONE of the following statements is wrong? A) All numbers including dates, stated in the particulars of claim must be expressed in figures. B) A copy of the written contract should be attached to the particulars of claim. C) The particulars of claim must contain the names of any witnesses your client proposes to call and prove the claim. D) The particulars of claim must not contain any assertion which you do not consider arguable. C A claim form has already been issued. You are drafting the particulars of claim. Which one of the following statements are correct? A) Interest should only be claimed at 1% over base rate.

B) Interest should be claimed at 12% per annum pursuant to clause 6 of the written contract from and including the date the balance of the contract price was due up to the date the claim form was issued and at the daily rate of £60.90 thereafter. C) Interest cannot in any circumstances be claimed under the late payment of Commercial debts (Interest) Act 1998 because the claim is for an unspecified amount of money. D) There is no need to claim interest as the trial judge always has discretion as to how much should be awarded for a period of time. B Even without knowing further facts about the case, which ONE of the following statements can you identify as NOT being a possible entry in the value section of the claim form? A) The claim is for a specified sum of £15,000 plus £129.60 interest and compensation of £100 under the late payment of commercial debts (interest) Act 1998. B) The claim is for a specified sum of £15,000 plus £74,10 contractual interest. C) The claim is for a specified sum of £15,000. D) The claim is a specified sum of £15,000 plus £98.70 interest under s.69 County Courts Act 1984. D ⇒ CPR 16.3(b) provides that, when calculating how much the claimant expects to recover for the purpose of setting out a statement of value, the claimant must disregard the possibility that the court may make an award of interest (or costs). Which ONE of the following statements about the claim form is correct? A) You must include on the first page a statement of the amount of accrued interest that is being claimed by your client. B) Although the defendant is a “partnership” it should appear on the claim form as “Commercial Data Guildshire LLP” rather than “commercial data guildshire (A firm)” C) As your client is claiming exactly £120,000 you should enter a figure CPR 45 fixed costs in the box for “legal representative’s costs” D) You must include on the first page your client’s full registered name, but there is no need to include the client’s address because your firm’s address will be entered in the relevant box as the address for service. B True or false: Hearsay evidence may be admissible as evidence of any matter stated if the court is satisfied that it is the interests of justice for it to be admissible.

True True or false: Hearsay evidence may be admissible as evidence of any matter stated by agreement of the parties. True True of false: Hearsay evidence may be admissible as evidence if any provisions of Chapter II of CJA 2003 or any other statutory provision makes it admissible. True True or false: Hearsay evidence is never admissible in criminal proceedings. False In relation to the statutory definition of the term ‘bad character’ consider whether the following statement is true or false: Evidence of bad character includes evidence of ‘or disposition towards, misconduct, the commission of an offence or other reprehensive behaviour True - It is wider than just the existence of previous convictions. True or false: A court officer may not make a consent order by entering or sealing an agreed order by enteri...