The Bar Training Course

The Bar Training Course

Full Time 2022-2023

College of Business and Law

CIVIL LITIGATION AND EVIDENCE

SGS 15

Preparation for Trial; Evidence of Fact

and Expert Witnesses

ANSWERS TO MCQ/SBA

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TASK 3- MULTIPLE CHOICE/SINGLE BEST ANSWER QUESTIONS

1. A cafe chain, “Parisienne Quarter”, commenced proceedings for £15,500

for breach of contract against a local bakery, Delightful Ovens, for supplying
large batches of croissants and pain au raisins which could not be sold in its
cafes as they were stale and not of satisfactory quality. Delightful Ovens
defends the claim on the basis that the croissants and pain au raisins supplied
were of satisfactory quality and that it was the way in which they were stored
by Parisienne Quarter that caused the problems.

Parisienne Quarter want to rely on oral evidence at trial from Clarice, its
operations manager at the time the dispute arose. Clarice has since left
Parisienne Quarter’s employment and works for a rival cafe chain. Clarice can
give vital evidence about how the croissants and pain au raisins were stored
and the instructions for storage that were given by Delightful Ovens.

Clarice has provided a statement and is willing and able to give oral evidence
at trial. Unfortunately, her new employer is reluctant to allow her to take time
off work to attend the trial to give evidence.

The date for exchange of witness statements is in two weeks’ time.

What is the best advice to give Parisienne Quarter about ensuring that
Clarice’s evidence will be received at trial?

[A] Serve Clarice’s witness statement and then serve a witness summons on
Clarice at least seven days before trial for her to attend trial to give evidence.

[B] Apply for an order for Clarice to be examined by deposition before the
trial takes place. The deposition may then be used in evidence at the trial.

[C] Serve Clarice’s witness statement and inform Delightful Ovens that she
will not be called to give oral evidence.

[D] Serve Clarice’s witness statement and then apply to the court for the trial
to be listed for hearing via video link.

FEEDBACK – A is the correct answer

[A] Serve Clarice’s witness statement and then serve a witness summons on
Clarice at least seven days before trial for her to attend trial to give evidence.
CPR 34.1-3 deals with witness summons and the times for serving witness
summons without permission of the court. This is the best answer, as
wherever possible, the general rule is that it is best to have factual evidence
dealt with orally at trial CPR 32.2(a). This is how the evidence will have most
weight as it can be tested under cross examination. This would not be
achieved by C. Whilst D is possible and 32.3 provides that the court may give
evidence through video link, this is not the best answer as Clarice has said
that the is willing and able to give evidence at trial – and there would be the

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application to the court for video link to be permitted to be dealt with – when
she is happy to attend. The summons would persuade her employers that she
had to do that in person. B is not the best answer as again, it would not be
oral evidence at trial but a written statement of her evidence, tested under
cross examination – CPR 34.8 and seems cumbersome and disproportionate
when she is clearly well and able to give evidence orally at trial.

2. Your client, Arif, recently bought a nightclub from Adam. One of the terms
of the contract of sale restricted Adam from setting up another club within
three miles for a period of twelve months. Adam has opened a new club
seven months after the sale, two miles from the original club. Arif is claiming
breach of contract and wishes to put forward evidence from a former
employee, Egberta, as to the effect the opening of the second club has had
on his business in terms of numbers of customers, bookings for parties etc.
Egberta now works for Adam. The court has given directions that the witness
statements be exchanged by 20 January 2023. Your client is sure that in the
witness box Egberta would give good evidence but has been unable to pin her
down to persuade her to give a statement.

Which one of the following reflects the correct advice to give Arif as to
whether Egberta can be used by you as a witness at the trial?

[A] Yes, Egberta can be used by you as a witness at the trial; the other
side should be told that you are unable to provide a statement but that
you will be calling her as a witness at trial.

[B] No, Egberta cannot be used by you as a witness at the trial. If you
cannot obtain a statement and serve it in accordance with the
directions for exchange of witness statements, then you are unable to
put her evidence before the court at trial.

[C] Yes, Egberta can be used by you as a witness at the trial. You can seek
permission from the court to serve a witness summary setting out the
evidence that you think Egberta will give and serve it in accordance
with the timetable for exchange of witness statements.

[D] No, Egberta cannot be used by you as a witness at the trial. Egberta is
now working for Adam and therefore would only be able to give
evidence on his behalf. Your client would have to hope that she was
called to give evidence for Adam and that you would then be able to
cross-examine her.

FEEDBACK – C is the correct answer.

C correctly reflects the correct advice to give Arif as to whether Egberta can
be used by you as a witness at the trial.

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If a witness statement cannot be served, then a witness summary may be

used instead so B is wrong.
CPR 32.9 provides that a party who –
(a) is required to serve a witness statement for use at trial; but
(b) is unable to obtain one, may apply, without notice, for permission to serve
a witness summary instead.

Without prior service of a either a statement or witness summary it will not be

possible for Egberta to be called to give evidence at trial, so A is incorrect.
There is no property in a witness so there is nothing preventing Egberta
appearing as a witness provided the procedural requirements are met,
therefore D is wrong.

For a commentary on the distinction between a “witness statement” and a

witness summary see CPR 32.4.3. Please note, that this paragraph reference
has not been given by the BSB and so it is not essential to read, but it may
assist your understanding. The BSB has however noted “witness summaries”
in the syllabus. In essence, a witness statement is a full proof of evidence.
A witness summary identifies the witness and indicates the issues with which
their evidence will deal.

In practice, it would be highly unlikely that this situation would arise. You
would normally avoid calling a witness without a full statement, and you could
apply to the Court to file a late witness statement once you obtained one.
However, this involves a request for relief from sanctions under CPR 3.9 and
it is unlikely such an application would be successful without a good reason.
It is useful to know however, that service of a witness summary is a
possibility. Make sure, however, that you know what the witness is going to
say and why you want to call them.

3. Demi and Charles have instructed a Single Joint Expert, a Care Consultant
Dr Nash, to offer an opinion on Demi’s long-term care requirements arising
from a permanent orthopaedic injury.

Mr Nash reports on 1 December 2022. Dr Nash, having carefully identified

and considered the medical evidence, clearly and unequivocally concludes
that Demi’s condition is not serious enough to justify a stairlift being installed
in her house.

It is now 10 December 2022. Demi wants to remind Dr Nash that the

orthopaedic surgeons agree that her knee gets very stiff after negotiating a
few steps, and that her condition will only deteriorate: as such, she wants to
ask him to reconsider his conclusion in respect of the stairlift.

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That said, Demi wonders whether it just might be easier to bypass him
altogether and instruct another expert: after all, his response is likely to be
unfavourable.

She seeks your advice as to her next steps.

[A] Demi should ignore putting questions and seek the court’s permission to
obtain an additional expert’s report;

[B] Demi should put her question to Dr Nash, but must first obtain permission
of the court;

[C] Demi should put her question to Dr Nash, but must first obtain Charles’s
consent;

[D] Demi should put her question to Dr Nash pursuant to CPR 35.6(2), under
which she requires neither permission from the court nor consent from
Charles.

Feedback – C is the best answer

Two key facts arise from the factual matrix:

 Demi is taking action within 28 days of receipt of the report;

 As this is claim for permanent injury, it can be assumed it involves a
‘substantial sum’;

While it may well transpire that a new expert needs to be instructed, in

granting permission the Court will have regard to the general principles under
35.4.2 but in particular under 35.7.4 ‘obtaining further expert evidence’ (p.
1249, towards the bottom of the page).

“In a case where there is a substantial sum involved, one starts … as to

whether to ask questions or whether to get your own expert’s report.”

The granting of permission is subject to the court’s discretion having regard

to the overriding objective (p. 1250 at the top of the page).

As such, it would be prudent to ask the question before seeking permission to

instruct a new expert; after all, Dr Nash may well reconsider his opinion when
again directed to the medical evidence.

However, CPR 35.6(2)(c) (‘Written questions to experts’), which allows a

question without consent or leave (answer [D], only applies to requests for
clarification.

CPR 35.6(2)(c)

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“…must be made for purposes only of clarification of the report…’

On its proper construction, this is not a request asking Dr Nash to clarify

anything that is unclear, or to consider something he has overlooked. Demi is
effectively asking him to change his mind.

[WHILST NOT ON THE SYLLABUS, and this referenced only if the rule seems
unclear, note the commentary under 35.6.1 [p. 1247]:

“…The meaning of clarification is not explained in the Rule or Practice

direction. However, it would seem that questions should not be used to …
conduct a form of cross-examination by post…”]

So, having determined that this is not a request for clarification, what is the
next step?

Continuing with CPR 35.6(2)(c):

“…unless in any case –

(i) The court gives permission; or
(ii) The other party agrees.

While on the face of it Demi has two possible routes, the Court would expect
the parties to first attempt to seek agreement. Putting this in context, picture
the following scenario:

Demi issues an application with supporting evidence seeking leave to put her
question. The court, already backlogged, lists her application. Charles writes
to the court confirming his consent to the application, pointing out that he
would have consented to it if Demi had simply asked him. Indeed, if she had
asked him, the question would have been asked and answered by now…

How do you think the Court would react to Demi’s application? (She would be
penalised in costs for wasting the Court’s time!)

As such, the first step must be to seek Charles’s consent. Only if he disagrees,
should an application to the Court be made (which in light of Charles’
obdurate refusal will be seen to be reasonable).

4. Retaining the facts of Demi v Charles above, assume for the purposes of
this question that each party had instructed their own care consultant expert
and they were due to exchange experts reports on Friday of this week. Your
instructing solicitor asks you to clarify the extent to which their instructions to
the expert need to be disclosed in the report and on what basis the expert
might be cross examined on those instructions at trial.

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[A] The expert is not required to disclose any details of the instructions
received from the instructing solicitors and may not be cross examined on
them as the instructions are privileged.

[B] The expert must state in his report, the substance of all material
instructions about the basis on which the court was written and the court will
permit the expert to be cross examined on such instructions if it is satisfied
that the instructions may have been inaccurate or incomplete.

[C] The expert is under no obligation to disclose the nature of his instructions
but may be cross examined on them if there is reason to believe that the
evidence given goes beyond the scope of the instructions.

[D] The report must set out the detail of all material instructions from the
solicitors and a copy of such instructions should be attached to the report.
The expert’s overriding duty is to the court and so can be cross examined on
those instructions to the extent that the court thinks fit.

Feedback – B is the correct answer.

See CPR35.10(3) and (4) and PD 35 Paragraph 5.

None of the other answers accurately reflects this requirement and so they
are wrong.

5. You act for the Claimant in a multi-track claim. At the case management
conference, it was directed that the expert instructed on behalf of the
Claimant and the expert instructed on behalf of the Defendant are to hold
discussions and prepare a joint statement. The Claimant is concerned that the
outcome of the discussion between the experts and the joint statement might
undermine his case at trial.

What is the correct advice to give to the Claimant the extent to which the
experts’ discussion and the joint statement may be relied upon at trial?

[A]The content of the discussion between the experts shall not be referred to
at the trial unless the parties agree, but the joint statement must set out the
issues upon which they agree and disagree.

[B]The experts at trial must disclose the content of the discussion, and the
joint statement should identify only the issues upon which they agree.

[C]The content of the discussion is always privileged and may not be referred
to at trial, and the joint statement will outline only the areas on which the
experts disagree.

[D]The outcome of the discussion and the joint statement are binding upon
both parties.

Feedback – A is the correct answer.

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The content of the discussion between the experts shall not be referred to at
the trial unless the parties agree but the joint statement must set out the
issues upon which they agree and disagree. CPR 35.12(3) and (4). B is wrong
as it states that the experts MUST disclose the contents of their discussion at
trial (which is wrong as CPR 35.12(4) states that the content of the discussion
between the experts shall not be referred to at trial unless the parties agree.
Whilst the first part of C is correct it is wrong to state that the joint statement
will only outline areas on which the experts disagree (see CPR 35.12 (3)
expressly states that if the experts are asked to prepare a joint report, then it
must set out those issues on which they agree and on which they disagree. D
is wrong as CPR 35. (12) (5) provides that where experts reach agreement on
an issue during their discussions, the agreement shall not bind the parties
unless the parties expressly agree to be bound by the agreement.

6. Lucilla and Ben are involved in a commercial dispute surrounding the sale
of share options. One of the issues of the claim is whether an agreement to
purchase had been executed in time.

Directions have been given, and a trial date has been fixed. Lucilla has served
a notice to admit facts (the Notice) requiring Ben to admit that the agreement
to purchase was executed in time. Your client, Ben, is reluctant “to help
Lucilla win her case” and states that he has no intention of admitting
anything.

Which of the following is the correct advice to give Ben as to whether he

should respond to this Notice?

[A] Ben need not respond to this Notice. The burden of proof rests on Lucilla
to prove her claim and so there are no consequences for Ben should he
ignore the Notice.

[B] If Ben makes an admission in response to the Notice, he will be bound by

it at trial and so should only respond, if not to do so would be considered
disproportionate.

[C] If Ben decides to make the admission, he should do so within 21 days of

service of the Notice to protect himself in relation to possible costs sanctions
which might otherwise be applied.

[D]Ben may make an admission in response to the Notice in the knowledge

that the court may allow him to withdraw or amend his admission on such
terms as it thinks just.

Feedback – D is the correct answer.

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D is the correct answer (CPR 32.18 (4)). A is wrong, as although it is correct

to state that the burden of proof rests on Lucilla to prove her case, there may
be consequences for a party(costs) who fails to respond to a notice which
may have helped to narrow the issues before the court as the conduct of the
parties is something which the court will take into account under CPR 44. B is
wrong as it does not allow for the correct answer – D – that the court may
allow a party to withdraw or amend his admission. C is wrong as there is no
time limit provided for in CPR 32.18. [p. 1155]

Information below taken from previous question – general information.

 Function The function of a notice to admit is to achieve further

definition/clarification of the trial issues.
 Once the direction stage has passed (which it has in this case) Lucilla is
entitled to serve a notice to admit facts.
 Notice must be served no later than 21 days before the trial. CPR
32.18 (2)
 Where an admission is made in response to a notice, that admission
may be used against the party who made it only-
o in the proceedings in which the notice to admit is served; and
o by the party who served the notice (CPR 32.18(3)(a) & (b))
 The court may allow a party to amend or withdraw any admission
made by him on such terms as it thinks just (32.18(4)).
 The advice to Ben will depend on exactly what he has been asked to
admit.
 Consequences of ignoring the Notice If Ben decides not to respond
to the notice, he exposes himself to the risks of a cost order being
made against him relating to the costs of proving those facts and
occasioned by and thrown away by not admitting them (CPR 44 and r
44(3) 6 give the court the scope and power to make such an order).
 A notice to admit should cover straightforward issues, such as if the
accident date is disputed at the outset but it becomes clear following
disclosure and/or exchange of witness statements that the date should
not be accepted as stated by the claimant, then a notice to admit can
be used to tidy this up.
 It is for the court to decide what is a reasonable timeframe.
 The court has its discretion under CPR 44.2 to make a costs order
against a party who takes longer than is reasonable and/or causes
additional costs to be incurred by the other party by obliging them to
prove an issue which should be admitted.
 not appropriate in relation to issues that are at the centre of a dispute.

The case moves on.

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7. Following the directions that have been given by the court, documents are
disclosed by List on Friday 3 February 2023. Witness statements are ordered
to be exchanged by 4 pm on Friday 17 February 2023. One of the documents
disclosed by Lucilla and inspected by Ben is a fax, which relates to the events
surrounding the alleged exercise of the option to purchase the shares. Ben
does not believe that the fax is a genuine document.

Advise Ben as to what steps, if any, he can take at this stage to dispute the
authenticity of this fax.

[A] Ben must wait until trial to cross-examine Lucilla on the authenticity of the
document.

[B] Ben must serve a notice to prove the document on Lucilla within 7 days of
disclosure of the document, failing which he will be deemed to admit it.

[C] Ben must serve a notice to prove the document on Lucilla within 14 days
of disclosure of the document, failing which he will be deemed to admit it.

[D] Ben must serve a notice to prove the document on Lucilla by Friday 17
February, failing which he will be deemed to admit it.

Feedback – D is the correct answer.

D Ben must serve a notice to prove the document on Lucilla by Friday 17

February, failing which he will be deemed to admit it. CPR 32.19 [p. 1155]
a party will be deemed to admit the authenticity of a document disclosed to
him under CPR 31 unless he serves a notice stating that he wishes the
document to be proved at trial.

Procedurally, the notice to prove a document must be served by the latest

day for service of the witness statements or within 7 days of disclosure of the
documents, whichever is later (CPR 32.19(2)). Here, D is the correct answer
as B and C refer to the fact that Ben must serve within those time limits,
ignoring the possibility of serving by the latest day for service of the witness
statements which on these facts is 18 February.

8. On 17 February, the parties exchange witness statements. There are

witness statements from Ben and from 2 other employees from Ben’s
company who were involved in the business transactions with Lucilla, which
are now the subject of the dispute.

At trial one of these employees, Faisal, mentions that he has some useful
evidence to help Ben about conversations with Lucilla which he has just
remembered, but which he overlooked putting in his witness statement. Ben

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seeks your advice as to whether Faisal can give evidence about these new
matters at trial.

What is the best advice to give Ben on this point?

[A] Additional evidence may be given orally in relation to the new matter.
Ben does not require the permission of the court or Lucilla’s consent as
the matter has arisen since the exchange of the witness statements.

[B] Additional evidence should have been given via the service of an
additional witness statement the day before the hearing. No additional
oral evidence can be given at trial.

[C] Additional evidence may not be given orally unless Faisal has the
permission of the court to give evidence about the new matter.

[D] Additional evidence may not be given as the Faisal’s evidence in chief
is confined to what is set out within his witness statement

FEEDBACK – C is the best advice

A and B and D are incorrect as the wording of CPR 32.5(3)(b) makes it clear
that a witness giving oral evidence at a trial may, with the permission of the
court, give evidence in relation to new matters which have arisen since the
witness statement was served on the other party.
C is correct as it most closely tallies with the wording of CPR 32.5(2)(b). [p.
1142]

UNSEEN MCQ’S

1. Marina is the Defendant in proceedings brought by Elaine in which Elaine is

advancing a claim for personal injury. Without Elaine knowing, and without
the court’s permission, six weeks after receiving Elaine’s medical report,
Marina puts written questions to the expert. Does the expert have an
obligation to reply?

[A] The expert is not obliged to reply as the request was not made in time
and Marina does not have the permission of the court or Elaine’s
permission to put the questions.

[B] The expert is obliged to reply as Marina is entitled to seek clarification

of his report.

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[C] The expert is obliged to reply as the questions were put within a
reasonable time following receipt of the report.

[D] The expert is only obliged to reply if ordered to do so by the Court.

FEEDBACK: The correct answer is A

A is correct as Marina has not put the questions within the time stipulated by
35.6(2)(b) [p. 1247] and is therefore time barred unless she had requested
permission from the court in accordance with 35.6(2)(i) or sought Elaine’s
consent before writing to the expert, which she has not done. B is incorrect as
Marina has acted out of time and should have therefore sought the
permission of the court or the consent of the other side (CPR 35.6(2)(i) and
(ii)). C is incorrect as it is plain from CPR 35.6(2)(b) that questions must be
asked within 28 days of service of the expert’s report. D is incorrect as there
is no requirement for the court’s permission if the purpose of the questions is
to clarify the report and questions are put within 28 days of receiving the
report (CPR 35.6(2)(b)).

2. Which of the following statements which purport to relate to witness

summons is wrong?

[A] A witness summons is a document issued by the court requiring a

witness to attend Court to give evidence;

[B] A witness summons is a document issued by the court requiring a

witness to produce documents to the Court;

[C] A separate witness summons must be issued and served in respect of

each witness;

[D] A witness summons may require a witness to produce a document to

the court at the time of trial only.

FEEDBACK – D is the correct answer

Statements A, B and C are correct statements (see CPR 34.2(a), 34.2(b) and
34.2(3) respectively. (D) is wrong as it suggests that a witness summons may
only require a witness to produce a document at trial; in fact, as set out in
CPR 34.2(b) the court may direct that the witness produce that document at
any other time that it might direct (i.e. before the trial).

The witness summons can be used to ensure that a witness attends Court to
give oral evidence, but also that they can be used to ensure that a witness
produces a document also.

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