UNIT 15 CIVIL LITIGATION SUGGESTED ANSWERS - JANUARY 2012

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1 Note to Candidates and Tutors: UNIT 15 CIVIL LITIGATION SUGGESTED ANSWERS - JANUARY 2012 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2012 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1 (a) On the facts we have been given my advice would be that the most appropriate application Driza Limited could make would be to apply for a Search Order under Civil Procedure Rules (CPR) 25. This would be on the grounds that Ms Levine is likely to dispose of evidence and information and the disposal of it will cause harm to Driza Limited. Having executed the Search Order Driza Limited would be able to take and retain copies of any relevant information found at Ms Levine s office. The application will be without notice and can be made before legal proceedings are issued but upon an undertaking to issue and serve proceedings forthwith. It would also be possible to apply for an order for pre-action disclosure under CPR 31 but this application, though it may well be made for the documents Ms Levine has in her possession this would not protect the risk that the documents would be destroyed by her as she has implied she would do this. (b) An application for a without notice application for a search order carries with it several very important obligations for the applicant (our client). This is because the application IS without notice. Our client, Driza Limited will have duties of full and frank disclosure this will include the need to disclose any weaknesses in their proposed claim. They will also be required to give an undertaking as to damages and provide security for the undertaking. This is to secure Ms Levine s losses in the event that Driza Limited s application is shown to have been unfounded or unreasonable. Page 1 of 8

2 (c) An application for an Interim Payment (CPR 25.7) is the appropriate application to make here especially if there is likely to be a delay before the court can list the assessment of damages hearing. Here Driza Limited can make the application under ground (b) the claimant has obtained judgment. There is therefore no risk that any award, provided it is not more than the court awards at the assessment hearing, would not be payable by the defendant. The court will therefore be concerned to have details of the value of Driza s claim. Driza s legal representatives should ask Lisette Levine s legal representatives to voluntarily agree an interim payment before proceeding with the application and provided they have done this and no interim payment is forthcoming or cannot be agreed then Driza Limited is likely to be awarded the costs of the application. The application will be made on Form N244 accompanied with a witness statement (it is unlikely that the space in Part C of Form N244 would be sufficient to provide all the necessary information) and the appropriate fee. The statement may be made by a director of Driza Ltd (with authority to make the statement) or by the company s legal representative. The court will require information concerning the potential value of the claim so that the court can assess the appropriate sum to award this is likely to be a sum less than the sum of the final award and the order will usually provide for payment to be made within 14 days. The defendant will be served with notice of the hearing (which will most likely be a telephone hearing) and it may respond, filing that response within 7 days of the hearing. The claimant may reply to the defendant s evidence within 3 days before the hearing. Where the defendant had been invited to agree an interim payment before the filing of the application the defendant will also, where the claimant has been successful, usually be ordered to pay the claimant s costs of the application provided the claimant had lodged their costs statement prior to the hearing. As the claimant has already secured judgment in this matter the application for an interim payment is likely to be successful. Question 2 (a) The claimant will be claiming that Pink Limited is liable for the negligent action of the Disc Jockey on the principle of vicarious liability. Clearly the Disc Jockey was working within the scope of his employment (as a disc jockey). Even if the Disc Jockey was doing the work in a manner that was contrary to his instructions this will not alter the liability of Pink Limited. It will depend on the terms of the employment between the Disc Jockey and Pink Limited whether Pink Limited can seek an indemnity or contribution from the Disc Jockey for any damages awarded to the claimant. (b) The defendant is making an allegation of contributory negligence against the claimant. If this part of the defence is successful then it will have the effect of reducing the award of damages by whatever % the claimant is found to have contributed to his injuries by his own negligence. There cannot be a finding of 100% contributory negligence as this would mean that there is no substantive claim. Page 2 of 8

3 (c) Guidance can be given about the following matters: An explanation of the cause of action and the matters upon which the expert is being asked to comment and give a prognosis on. What the form of his report should be giving specific guidance to the matters set down in CPR (that the expert should provide a written report and that the written report may constitute his evidence in the matter if no direction has been given for oral evidence by experts), and PD (that the report must contain; details of his qualifications, details of materials relied on, the full facts as he knows them, who carried out the examination, whether there could be a range of opinions and if so what are his reasons for the opinion he states, that he understands his duties to the court and is aware of the requirements of CPR 35 and he endorses the report with a statement of truth). Often a copy of Part 35 and its practice direction will be included in the instructions to the expert. Further guidance will be given about the directions orders that have been given in the case here, that both parties have been given permission to adduce expert evidence then there are likely to be directions for questions to experts, time limits for those questions and the replies to them and possibly a meeting of experts and the need to file a supplemental report agreed by both experts after that meeting. Guidance can be given to the expert of his further responsibilities and need to comply with all directions orders made in respect of his involvement in the action. Essentially all help can be given to the expert to ensure that he understands the level of his involvement in the action and the form that his report should take. No guidance or influence can be given that would relate to the content of the report or the opinions that the expert will express. Question 3 (a) In The Bedford County Court Claim No: BD Between Mr Robert Corne T/A RLC and Associates Claimant and Mrs Heather Bellon Defendant Particulars of Claim Page 3 of 8

4 1. The Claimant is and was at all times a property developer. 2. The Claimant built a property known as Plot 3 High Barn Farm, Northampton ( the property ). The Defendant agreed to purchase the property for the sum of 470,000 pursuant to contract made between the parties dated 12 th May 2011 and exhibited to the Particulars of Claim. 3. Completion of the sale of the property was to be effected on 12 th August However, as at the 12 th August 2011, a number of items of work remained incomplete including the turfing to the rear garden. 4. In order to secure completion of these items, the Claimant verbally agreed with the Defendant on or about the morning of the 12 th August 2011 that she could retain 9000 from the purchase price payable until completion of the identified items provided that such a retention was paid into a stakeholder account operated by the Defendant s solicitors and that the retention was paid to the Claimant within 7 days of the date on which the agreed outstanding items were complete. 5. The sale and purchase of the property were completed at 3pm on 12 th August All the items, including the rear turfing, were completed on 21 st September The Defendant did not pay the retention to the Claimant within 7 days thereof as previously agreed. Payment of the retention was formally requested by letter dated 28th September Despite this letter, further letters and telephone calls, the Defendant has failed to pay the retention of 9,000. The full amount of the retention therefore remains due and owing. 7. The Claimant further claims interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% from 28th September 2011 to date in the sum of xxx and continuing interest at a daily rate of xxx per day until judgment or sooner payment. AND THE CLAIMANT CLAIMS: 1. The sum of 9000, 2. Interest as stated above. STATEMENT OF TRUTH I believe that the facts stated in these particulars of claim are true. Robert Leonard Corne Dated this day of 20xx Page 4 of 8

5 (b) (i) The claimant needs to acknowledge receipt of the Defence and Counterclaim to the Defendant s solicitor and confirm date for filing and serving the Reply and Defence to Counterclaim. There is no requirement for the Claimant to file an Acknowledgment of Service CPR 20.4(3). (ii) If the claimant does not serve a Defence to Counterclaim, the defendant can apply for Default Judgment (on the counterclaim) under CPR 12 (see CPR 20.3(3)(a) Part 12 applies to a P20 claim only if it is a counterclaim. (iii)the court will firstly consider the parties to the action on receipt of the Defence and Counter Claim and the Reply to Defence and Counterclaim. As the Defendant is an individual and the claim is for a specified sum of money then the court will automatically transfer the action to the Defendant s home court CPR In this case it will probably be to the Northampton County Court. The court will case manage the claim and the counterclaim together CPR (2). Northampton County Court will issue Allocation Questionnaires in respect of both claim and counterclaim. (c) The directions are likely to follow standard directions set out in PD 28 (in accordance with PD 28 para 3.12 or PD29 paras 5.3 and 5.4) but with some adaptations on the facts and include: Stay to attempt settlement until xx date In absence of settlement, an order that the parties prepare for trial as follows: 1. Standard disclosure by list with disclosure statement by xx date 2. Inspection within 7 days and state date 3. Simultaneous witness statement exchange by xx date 4. On the facts the court may not feel that there is a need for expert evidence. If so there will be no order granting either party po permission for expert evidence but perhaps instead a direction for a pre-trial site visit by the judge, or the admission of photographs etc. If the court was persuaded that expert evidence should be permitted then this would almost certainly be permission for a single joint expert. Such an order is likely to also permit questions to the expert and an order than his evidence be adduced as written (but not oral) evidence. 5. Matter be listed for a further CMC with time estimate of 30mins 6. The parties to agree and file an agreed case summary, further draft directions if appropriate, a summary of costs to date and to trial, at least 3 clear days before the hearing The justification for this list is that there is nothing particular in this case that would take it out of Standard Directions. The main difference in this list and the list set out in Standard Directions is that there is no order permitting expert evidence as I don t think there is any justification for this as any person can assess whether the garden is of satisfactory standard hence the inclusion of a site visit. The court might take the view that a single joint expert commenting on the quality of the garden may be cheaper than a judicial site visit and if so I would expect a direction for a single joint expert only. Page 5 of 8

6 In a case such as this the court may wish to give directions all the way to trial. If this were the case then there would be no further CMC or provision for Case Summaries etc at that stage but rather the following additional directions: Pre-trial checklists to be filed and served by xx date Trial window to be fixed when parties have filed available dates by xx date for the 6 months following the date for filing the PT Checklist Claimant to file not less than 7 days before the trial the following: agreed Case Summary, agreed proposed trial timetable, (which would include a site visit) statements of case, witness statements, bundle of core documents to include photos, skeletons and authorities. Question 4 (a) The offer being put forward by the Claimant cannot be resolved within CPR Part 36 as the offer includes a contribution to costs and requires a payment more than 14 days after acceptance (CPR36.11(6)). The requirements of a Part 36 offer are specific and precise. The offer is therefore not a Part 36 Offer it is though an offer (akin to a global offer) but because it is not Part 36 complaint it will not carry with it the benefits/sanctions of Part 36. (b) However the offer, once accepted, does create a settlement of the action. The client is concerned if payment is not forthcoming after 21 days. We need to advise the client that the best way to protect them in the event that the defendant does not pay the agreed settlement figure ( 20,500) would be to draw up a Tomlin Order. Where the parties have agreed terms for settling the dispute they must also decide how those terms should be recorded and in considering this they should consider how the agreed terms can be enforced in the event of a party failing to comply with the terms agreed. The essential difference between a consent order and a Tomlin Order is that with the former the courts will not usually lift the stay (of the action) effected by the consent order so in these cases enforcement can only be effected by bringing fresh proceedings for breach of the contract of compromise. A Tomlin Order has the effect of staying the proceedings save for the purpose of carrying out the terms agreed and set out in the schedule to the Tomlin Order. Ordinary consent orders following a compromise often include a stay of the proceedings. Similarly, a Tomlin Order provides for the stay of the proceedings on the terms set out in the schedule to the order. However the Tomlin Order will include a Liberty to Apply provision. Enforcement of terms set out in a Tomlin Order is a two stage process. First the claim must be restored under the Liberty to Apply clause and an order obtained to compel compliance. Secondly, if the order to compel compliance is breached then enforcement can proceed in the normal way. Clearly a Tomlin Order is the way to proceed to protect the clients position in this case. Page 6 of 8

7 The Tomlin Order will include a stay of the proceedings and thus the trial date will be vacated so the client can be told that he will not need to attend the trial date. (c) Clearly in receiving any instructions from a client to pursue a claim against a person, firm or company there should be accompanying advice to check the viability or financial health of the intended defendant. If this advice was not given in the beginning (when instructions were first received) in this case then your clients may well have a valid cause for complaint. The advice to have as much knowledge of the viability of any defendant should be on-going so that advice can be given or steps taken if it seems likely that the defendant s position has changed which indicate that he/it may be unable to satisfy any judgment obtained. So here the client should have been advised to take steps to check that the defendant was in a position to pay the debt. This could have included a company search, enquiry agent checks or judgment registry checks. (d) Judgment in an action may be the success of the battle but the war is not won until that judgment is satisfied. The court sets out the methods of enforcing judgments in CPR Parts Some actions will have to be transferred either from the High Court to the County Court or from the County Court to the High Court for enforcement depending on the value. See High Court and County Court Jurisdiction Order 1991 art 8(1). Any of the following could be chosen and expanded upon: Execution against goods: writ of Fieri facias Fi. Fa in the High Court or Warrant of Execution in the County Court. Execution is quicker and more effective in the High Court. Interest is also allowed on the judgment debt (this stops on county court judgments once enforcement proceedings begin). The procedure is fairly straight forward although the High Court Enforcement Office (HCEO) will deduct his fees before rendering any monies from the execution. There are also certain goods that are exempt from seizure by the HCEO and these can be found in s.15 Courts and Legal Services Act - e.g. clothing, bedding, tools of debtor's trade etc. In addition to this, the debtor can claim there he does not own the goods or that an exemption applies. This of course has a cost and time implication which could give rise to a lengthy dispute as to ownership. A disadvantage is that there could be competing creditors with writs of Fi Fa. In the High Court, priority is governed by the time the writ is received by the HCEO. In the County Court, it is the time the request is delivered to the court. You may therefore not be first in line. In terms of the advantages of execution particularly in the High Court, it is relatively effective if you have an idea that there are suitable goods upon which to levy. Third party debt orders have the effect of transforming a debt payable by a third party to the judgment debtor into an obligation to pay the debt to the judgment creditor. Most often used where the creditor knows the debtor's bank account is in credit. Can include a variety of accounts but not joint accounts Page 7 of 8

8 unless other account holder is also debtor. These proceedings can be risky, particularly in relation to bank accounts. They will only be of use if the account is in funds when the order attaches. If funds are due later the application will need to be repeated. Therefore there are timing issues. Also the debtor can apply for a hardship order which if successful will allow him to withdraw funds from the account that the bank for example had to retain. The final order is down to the discretion of the court but generally, a third party debt order will not be made final if the effect were to prefer one creditor above another. Charging Orders: A Charging Order secures a debt. It may give long term security for the debt but may not realise the debt unless an order for sale is obtained. Procedurally, the Charging Order is not too difficult to obtain but once the interim order has been made, you should register it as a Notice in relation to registered land or as a Land Charge in relation to unregistered land. Once the final order is made you do not need to re-register. However obtaining an Order for Sale is extremely difficult and involves the issue of Part 8 proceedings in Chancery once you have the Charging Order. The cost implications on this method are extensive and therefore the debt would need to be sizeable. CPR 70.2(2): A judgment creditor may use any method of enforcement which is available and use more than one method either at the same time or one after another...except where an enactment...provides otherwise. Page 8 of 8