Civil Litigation - Questions 1

Two companies are engaged in a dispute over the adequacy of the performance of a contract. Proceedings have been issued and a stay of proceedings has been ordered to enable the parties to attempt ADR. The defendant proposes mediation, to which the claimant agrees. The claimant has instructed their solicitor on a conditional fee arrangement whereas the defendant has instructed their solicitor on a fixed fee retainer.

Who meets the costs of mediation?

• The mediator's fee will be met by the claimant, in the usual way.

• The mediator's fee is always met by the party who proposed mediation; in this instance, the defendant.

• The mediator's fee will normally be borne by the parties equally and they will be jointly and severally liable to the mediator for it.

• The mediator's fee is met by the court in order to achieve the overriding objective of encouraging the parties to settle.

In a complex claim arising in nuisance, the parties are unable to agree on the principal issues. As a result, although disclosure has taken place and the parties have exchanged witness statements, the parties are unwilling to commit to mediation. However, the parties are willing to consider early neutral evaluation (ENE). The claimant's solicitor telephones his client to explain the meaning of ENE.

What is the correct explanation for the solicitor to give about early neutral evaluation?

• A non-specialist neutral party observes the discussion between the parties' legal representatives and provides a view as to which has the stronger case to help the parties to settle.

• A neutral party, usually with specialist experience, will consider the evidence and provide a non-binding view of the case which may help the parties to narrow the issues and settle.

• A neutral party will consider the evidence and provide a non-binding view of the case which will be drawn up as an order to conclude the proceedings.

• A neutral observer will assist the judge at trial to ensure a balanced view is reached. 

In pre-action correspondence relating to a modest neighbour dispute, and to which a pre-action protocol does not apply, a claimant proposes the use of ADR to resolve the dispute. The defendant's solicitor discusses the proposal with his client. After consideration, the client is reluctant to enter into ADR and wishes to reject the proposal.

How should the defendant's solicitor respond to the claimant's solicitor with regard to the proposal to use ADR?

• The defendant's solicitor should respond within seven days of the proposal confirming that his client wishes to reject the proposal.

• The defendant's solicitor should respond within 14 days of the proposal confirming that his client wishes to reject the proposal.

• The defendant's solicitors should respond providing sufficient reasons to show that the refusal is reasonable.

• The defendant's solicitors should respond providing a specific reason to show that the consideration of the proposal has been exhaustive.

A solicitor is considering whether an arbitrator's award can be appealed following an arbitration hearing at which the arbitrator refused to allow further factual evidence and appeared improperly to apply the law to the facts and evidence.

In principle, on which of the following grounds, if any, can an arbitrator's award be appealed?

• An incorrect finding of fact.

• The refusal to allow further evidence.

• An error on a point of law.

• Any irregularity in the conduct of the arbitration.

A defendant is served with a claim form and particulars of claim. The defendant notices that the allegations differ from those set out within the letter of claim sent in accordance with the relevant pre-action protocol, and which the defendant has denied in his letter of response.

How should the defendant respond to the particulars of claim in his defence?

• The defendant should admit the allegations in the particulars of claim and deny the allegations raised in the letter of claim.

• The defendant should deny the allegations both in the particulars of claim and in the letter of claim.

• The defendant should admit, deny or state which allegations are neither admitted nor denied in respect of both the particulars of claim and the letter of claim.

• The defendant need only admit, deny or state which allegations are neither admitted nor denied in respect of the particulars of claim.

A claimant has brought a claim for damages for breach of contract against a decorating company which carried out work at his new art gallery. The particulars of claim alleges that as a result of the defendant's poor work, the gallery opening was delayed by one week whilst remedial work was carried out. The claimant has refused to pay the balance of £5,000 due under the contract. The defendant denies the allegations of breach and says that the claimant inspected and accepted the work done and that they are owed the balance due.

What is the best advice for the defendant's solicitor to give the defendant about the contents of the defence and recovery of the outstanding sum?

• Deny breach of contract and causation, state the reasons for doing so and include a counterclaim for the sum of £5,000.

• Deny breach, causation and loss and damage, state the reasons for doing so and counterclaim the sum of £5,000.

• Require the claimant to prove the amount of loss and damage, deny breach and causation, state the reasons for doing so and include a set-off, and a counterclaim, in relation to the sum of £5,000.

• Deny all allegations as nothing on the facts can be admitted, put the claimant to strict proof and include a counterclaim in the sum of £5,000.

A festival organiser wishes to bring a claim against a defendant for breach of contract relating to the provision and servicing of a cocktail bar at a festival venue. The contract was verbally agreed over the telephone. There are no written express terms of the contract. As a result of complaints received, and to preserve his reputation, the claimant hired additional staff and bought better quality cocktail ingredients. Pre-action correspondence has passed between the parties but it has not been possible to reach a resolution of the dispute. The claimant's solicitor is to draft the particulars of claim.

Aside from the claim for interest and a concise statement of the facts of the claim, what must the solicitor include in the particulars of claim about the claim and the contract on these facts?

• The statement of value and the efforts made to reach a resolution of the dispute.

• The contractual words used and by whom, to whom, when and where they were spoken.

• Details of the contractual words used and by whom, to whom, when and where they were spoken, and details of any misrepresentation, and the claimant's mitigation of loss or damage.

• Details of the common ground established in pre-action correspondence with the correspondence attached to the particulars of claim.

The defendant in a nuisance claim is served with a request for further information by the claimant relating to matters stated in the defence. No application has yet been made to the court. The request complies with the relevant procedural rules. It does not contain a statement of truth. The defendant's solicitor is preparing his client's response, which is to be provided voluntarily. The defendant's solicitor is unsure whether the response needs to include a statement of truth.

Is the defendant required to provide a statement of truth in his response, and for what reason?

• A statement of truth is not required as the response to the request is not a statement of case.

• A statement of truth is not required as the defendant must respond in the same format as the request, which did not contain a statement of truth.

• A statement of truth is required as the response to the request is a statement of case.

• A statement of truth is required as all court documents must be verified by a statement of truth.

On 13 January, a solicitor receives a call from a client who wishes to bring a claim for personal injury in which the limitation period expires in two weeks' time on 28 January. The Practice Direction—Pre-Action Conduct and Protocols ("PD-PACAP") applies to the claim.

What is the best advice for the client to be given to protect his interests?

• Issue proceedings within the limitation period and immediately serve them on the defendant.

• That it is too late to bring the claim as the PD-PACAP must be complied with before the proceedings are issued.

• Request the defendant in writing to agree not to take issue with regard to the limitation period to allow compliance with the PD-PACAP.

• Issue proceedings within the limitation period and apply to the court for a stay of proceedings.

A solicitor is preparing a letter of claim on behalf of her client to which the Pre-Action Protocol for Personal Injury Claims applies. The solicitor currently has a description of the claimant's injuries, names of witnesses, a clear summary of the facts, reasons why fault is alleged, details of the client's loss of earnings and other losses.

Which of the given details may be omitted from the letter of claim?

• A description of the claimant's injuries.

• Names of the witnesses whose evidence will be relied upon.

• The reason why fault is alleged.

• Details of the claimant's loss of earnings and other financial losses