SGS 9 TASK 4 – MULTIPLE CHOICE/SINGLE BEST ANSWER QUESTIONS

1. Cameron had a claim for damages for breach of contract against Magnus
Company Ltd. The damages were estimated to be in the region of £85,000.
Cameron died after the claim form had been issued and served and a
defence had been served in response. Cameron's widow, Emma, was the
executor of Cameron’s estate.

Which of the following is the best advice to give Emma in the

circumstances?

[A] The court’s permission is not required to add or substitute Emma as a

party as the interest in the claim automatically passes to Emma as
Cameron’s widow.

[B] Unfortunately, as judgment had not been given before Cameron died,
There is nothing that Emma can do to take the benefit of this claim.

[C] On Cameron's death as the cause of action survives, Emma, as

Cameron’s executor, may apply for an order to be substituted as a
claimant in order to carry on the proceedings; she is likely to be
substituted as Cameron's interest has passed to Emma and it is
desirable to substitute Emma so that the court can resolve the
matters
in dispute in the proceedings.

[D] On Cameron’s death as the cause of action survives, Emma, as

Cameron’s executor, may apply for an order to be added as a
claimant
in order to carry on the proceedings, on the ground that it is
desirable
to add the new party so that the court can resolve all the matters in
dispute in the proceedings.

C is the most appropriate answer and reflects the wording at CPR 19.2 (4). It is more
appropriate than option D which is the test for adding a new party, as opposed to
substituting a new party.

The purpose of role CPR 19.2 is to assist the parties in circumstances, for example, where
that has been a change of circumstances or an interest or liability has passed to a new
party. It would be wholly unjust, if on the facts of this case, Emma could not take the
benefit of Cameron’s claim and that is why B is incorrect. A is incorrect as the court’s
permission is required to remove, add or substitute a party, unless the claim form has not
been served. We are told that the claim form has been served on these facts.

Also see CPR 19.8 (which is on the syllabus). That provision does not apply here as
Cameron’s estate has a personal representative (his widow, Emma). CPR 19.8 relates to
the court appointment of a personal representative.
 2. You are instructed on behalf of Bob who is the Claimant in proceedings
brought against Harry for negligently valuing a property owned jointly by
Bob and his wife, Fiona. The claim form and particulars of claim have been
served. Whilst preparing for a conference with Bob, you form the opinion
that his wife is jointly entitled to the relief claimed and ought properly to
be added as a party. Your instructing solicitors confirm that Fiona will give
written consent to being joined as a claimant.
Please advise in what circumstances Fiona may be added as a party to the
proceedings.

[A] Fiona may be added as a party only with the written consent of Harry.

[B] Fiona may be added as a party only with the court’s permission.

[C] Fiona may be added as a party with either the written consent of Harry
or with the court’s permission.

[D] Fiona may be added as a party without the written consent of Harry and
without the court’s permission.

B is the correct answer. CPR 19.4(1) provides that the court’s permission is required to
add a party unless the Claim form has not been served.

Option A is wrong. Although CPR 17.1(2) states that, if a Statement of Case has been
served, a party may amend it with the written consent of all other parties, this rule is
overridden by CPR 19.4 (see CPR 17.1(3)).

Option C is wrong as it includes the proposition that Fiona may be added as a party with
Harry’s consent. In these circumstances, where proceedings have been served, permission
of the court is required (CPR 19.4(1)).

Option D is wrong as it includes the proposition that the court’s permission is not required.

3. “Cupboard Love” a small jam making company based in Bath, purchased some
labels and advertising banners from Prime Printing Limited to market the jams at
the Good Food show. The materials were delivered in September 2016, 1 month
later than contractually agreed and were also of such poor quality that they could
not be used. Cupboard Love concentrated on trying to save the situation and take
the business forward and finally issued and served proceedings on Prime Printing
Limited in July 2022. In September 2022 (having received an extension of time)
Prime Printing Limited served a defence alleging that the contract was not made
with it but with Prima Printing (Bath) Limited, a different company but with the
same registered office. It is now October 2022 and Cupboard Love wants to
amend its proceedings by substituting Prima Printing (Bath) Limited for Prime
Printing Limited.

What is the correct approach to be taken by the court?

[A] Cupboard Love’s application will be granted as the 2 companies have the
same registered office.
[B] Cupboard Love’s application may be granted if Prime Printing Limited was
named in the Claim Form by mistake for the new party.

[C] The application cannot be granted as the limitation period has now expired
and so the Court has no jurisdiction to make the amendment requested.

[D] The application will not be granted unless Cupboard Love is able to
establish that it was deliberately misled as to which party to sue, by Prime
Printing Limited.

[B] is the CORRECT answer.

It is often useful to compile a chronology

August 2016 – accrual of the cause of action (note that the breach occurred when the
goods should have been delivered – see Sime para 21.20) – we are told on the facts that
they were delivered in September – 1 month later than contractually agreed
July 2022 – Proceedings served (within the 6 years allowed for under S 5 of the Limitation
Act)
August 2022 – expiry of Limitation Period
September 2022 – Service of Defence
October 2022 – Now…

We can therefore see that Cupboard Love is seeking permission to substitute the name of
the company being sued - after the expiry of the limitation period. Generally, new parties
cannot be substituted after the expiry of the limitation period (s 35(3) of the Limitation Act
1980) (as to do so would deprive them of a (limitation) defence which they would otherwise
have had).

There are however some exceptions to this, and the substitution may be allowed after the
expiry of the limitation period if the relevant limitation period was current when the claim
was issued, and it is necessary (CPR 19.5(2)(b)). Substitution may be regarded as
necessary if the original party’s name was given in mistake for the new party’s name (s
35(6) (a) and rule 19.5(3) (a) of the CPR to be read together with CPR 17.4(3)).
Hence the answer is B. See Sime para 22.28 which sets out further criteria which enable
you to establish if there has been a “genuine mistake”.

4. Joseph issued proceedings against Ace Distribution (‘Ace’) for breach of

contract. Ace Distribution served its defence, in which it made certain allegations
against Moonshadow Publishers (‘Moonshadow’). As a result, Joseph has been
given permission to add Moonshadow as a second Defendant to the proceedings
he has brought against Ace, and to serve amended particulars of claim.

What is the correct advice to give Ace as to the procedure by which it may make
a claim for contribution or indemnity against Moonshadow?

[A] Ace should amend its defence to include a claim for contribution or
indemnity against Moonshadow. It will also need to obtain the permission
of the court to do so.
[B] Ace should issue an additional claim against Moonshadow to join him as a
third party to the proceedings. It will also need to obtain the court’s
permission to do so.

[C] If within 28 days of service of Moonshadow’s defence, Ace files and serves
a notice on Moonshadow containing a statement of the nature and
grounds of its additional claim, it will not require the court’s permission to
make the claim for contribution or indemnity.

[D] If within 28 days of service of the amended particulars of claim, Ace files
and serves a notice on Moonshadow containing a statement of the nature
and grounds of his additional claim, it will not require the court’s
permission to make the claim for contribution or indemnity.

ANSWER

[C] is the correct answer as it follows the provisions of CPR 20.6(2)(ii). A defendant
may file and serve an additional claim for contribution or indemnity against a party added to
the claim later, without the court’s permission provided it does so within 28 days after the
additional party (here, Moonshadow) files its defence.

[A] is wrong. Whilst it is correct that Ace would require the permission of the court to
amend at this stage, Ace has no need to amend its Defence if allegations have already been
raised against Moonshadow. Ace can follow CPR 20.6 by making a claim by filing a notice
containing a statement of the nature and grounds of his additional claim; and serving the
notice on that party.
[B] is wrong - Ace does not need to issue an additional claim (CPR 20.7). Moonshadow has
been joined as a defendant. The appropriate procedure is to serve a notice. See Practice
Direction 20 Paragraph 7.4.

[D] is wrong - see CPR 20.6(2)(ii) in which it states that time runs from service of the
defence, not the particulars of claim.

5. Victor entered into a contract with Tiptop Roofing Limited (TRL) to replace
the tile roof on his house. TRL obtained the tiles for the new roof from Slate
Tiles, who supply bespoke roofing tiles. After completion of the works, the roof
leaked causing substantial damage to Victor’s house. Victor has issued
proceedings against TRL claiming damages for his losses, alleging faulty building
and repair works.

TRL deny that the works they carried on Victor’s roof were faulty and blame the
leaks on the unsatisfactory quality of the tiles supplied by Slate Tiles.

When filing and serving its defence, TRL also filed and served an additional claim
form on Slate Tiles claiming a contribution and indemnity. TRL has not yet
responded. The matter has been allocated to the multi-track, but no case
management hearing for the original claim has yet been listed.

What would be the correct advice to give TRL in respect of what will happen next
in the proceedings?
[A] As the additional claim has been served, the court will arrange a hearing
to consider case management of the additional claim. This will normally be
at the same time as a case management hearing in the original claim.

[B] As the additional claim has been served, the court is likely to immediately
list a hearing to consider case management of the additional claim.

[C] If Slate Tiles files a defence to the additional claim, the court will notify all
of the parties of a date for an allocation hearing.

[D] If Slate Tiles files a defence to the additional claim, the court will arrange
a hearing to consider case management of the additional claim. This will
normally be at the same time as a case management hearing in the
original claim.

[D] is the correct answer pursuant to PD 20 para 5.1. Where the defendant to an
additional claim (Slate Tiles) files a defence, other than a counterclaim, the court will
arrange a hearing to consider case management of the additional claim. This will normally
be at the same time as a case management hearing for the original claim and any other
additional claims.

A – is incorrect, whilst it is correct that the CMC is normally held at the same time as the
CMC for the original claim, the wording here is not exactly what PD20, para 5.1 says, which
states that the court will arrange for a CMC where the defendant to an additional claim files
a defence.

B – is incorrect as the court will wait for filing of the defence before giving case
management directions, as explained above.

C - is incorrect as, not only has the matter already been allocated, the court will arrange a
case management conference to consider directions (not an allocation hearing). PD20,
para.5.1. The court will give notice of the hearing to each party likely to be affected any
order made at the hearing (PD20, para 5.2).

ROLLING CASE SCENARIO

Sadid intends to bring a claim in the High Court seeking personal injury damages
in respect of an accident which occurred on 20 September 2018. He was
crossing a main road using a pedestrian crossing whose lights were showing
green in his favour when he was struck and thrown to the ground by a recycling
lorry driven by Henry, a Council employee. Henry had failed to stop at the traffic
lights even though they were showing red from his perspective. Sadid was
seriously hurt and wishes to recover damages for his injuries. He makes
enquiries and discovers that Henry is impecunious and so decides to pursue the
Council for damages on the basis that Henry was acting in the course of his
employment at the time of the accident so that the Council are vicariously liable
for his action. Henry blames his failure to stop on the failure of the lorry’s brakes.
The Council blames Jim’s Autos Limited, who had replaced the lorry’s brake
hydraulic system some two weeks before the accident. Sadid has not yet issued
proceedings, but his solicitors have written indicating that they are imminent.

1. What is the best advice to give the Council as to the appropriate procedure
for bringing a claim against Jim’s Autos Limited?

[A] The Council should invoke the Part 20 procedure and bring in Jim’s
Autos Limited as an additional party, which it may do without
permission so long as the additional claim is issued before or at the
same time as the defence is filed.

[B] The Council may commence separate proceedings against Jim’s

Autos Limited without needing the permission of the court.

[C] The Council should invoke the Part 20 procedure and bring in Jim’s
Autos Limited as an additional party, but he will need the
permission of the court to do so.

[D] The Council may await the outcome of Sadid’s action against it
before doing anything.

A is the correct answer, as it is the best advice to give the Council in the circumstances.
CPR 20.2 and 20.7 allow a person in the position of defendant to bring a claim for
contribution, indemnity or some other remedy against someone not currently party to the
litigation.

Both B and D are correct (as the word ‘may’ is used in each case) but are not the ‘best’
advice to give in the circumstances. The Part 20 procedure has a number of advantages,
namely safeguarding against differing results, ensuring the Additional Party (Jim’s Autos) is
bound by the decision between claimant and defendant, ensuring the additional claim is
decided at or at about the same time as the claim between claimant and defendant and
saving the expense of a second trial.

C is wrong as the permission of the court is not required so long as the additional claim is
issued before or at the same time as the defence is filed. (CPR 20.7(3)(a)).

Sadid issues a claim form on 27 August 2021 in which he names the Defendant as
“North Somerset District Council” believing this to be the name of the local
council which employed Henry. He does not serve the claim form.

On 18 September 2021, and with the claim form still unserved, Sadid learns that
the council is in fact known as “Somerset County Council”.

2. What is the best advice to give Sadid so that he can proceed with his claim
against Somerset County Council?

[A] Sadid should make an application to the court seeking permission to

amend the claim form to name the Defendant as “Somerset County
Council”.
 [B] Sadid should issue a new claim form against “Somerset County
Council”.

[C] Sadid should amend the name on the claim form immediately so
that it states the Defendant to be “Somerset County Council” and
serve it within 4 months of the date of issue.

[D] Sadid should serve the claim form as it is and make an application to
the Court seeking permission to amend the claim form to name the
Defendant as “Somerset County Council”.

C is the correct answer. The claim form can be amended without permission
before it is served – CPR 17.1(1). Furthermore, permission is not required to
substitute a party where the claim form has not been served (CPR 19.4(1)).

A is not the best answer as, whilst permission could be sought, it is not necessary
here (see above). B is not the best answer as, whilst it could be done, it is
unnecessary, costly and risky given that limitation is approaching, and the claim
form may not be received by the court in time. D is not the best answer as, whilst
the problem could be resolved by using CPR 17.4(3) (allowing a party to correct a
genuine mistake), this is unnecessarily complicated on these facts. It is also risky as
the claim is so close to limitation and there is a real possibility that the claim will be
statute barred if it has been served on a wrongly named party. There is no need to
rely on the restrictive and discretionary provisions of CPR 17.4 as the limitation
period has not yet expired.

The situation with the name of the Defendant is rectified. Sadid serves the claim
form and Particulars of Claim in good time, but the Council indicates in
correspondence that Henry was not acting in the course of his employment at the
time of the accident. It makes an application to strike out the claim against it on
the basis that it discloses no reasonable cause of action. The time for
acknowledging service passes without the Council filing an acknowledgement of
service so Sadid files a request and obtains default judgment against the Council.
The Council immediately applies to have the default judgment set aside.

3. On what basis will the Court decide the Council’s application to set aside
the judgment?

[A] The Court may set aside the default judgment if it is satisfied that
the Council has a real prospect of successfully defending the claim
or there is some other good reason why the matter should go to
trial;

[B] The Court may set aside the default judgment if it is satisfied that
there has been a failure to comply with a rule, practice direction or
court order or if not setting it aside would be likely to obstruct the
just disposal of the case;

[C] The Court may set aside the default judgment only if it is satisfied
that the requirements for entering the default judgment in the first
place were not satisfied
 [D] The Court must set aside the default judgment.

D is the correct answer. Under CPR 12.3(3) the claimant may not obtain default
judgment if the defendant has applied to have the claimant’s statement of case struck out
and that application has not been disposed of. That is the case here. Accordingly, the court
MUST set aside the default judgment under CPR 13.2(a) as it was wrongly entered. There is
no discretion.
A, B and C are wrong as they all suggest (by use of the word ‘may’) that the Court has
some discretion. Also, A is wrong because it sets out the test for the discretionary setting
aside of default judgment under CPR 13.3, which does not apply here and B is wrong
because it is a rather jumbled and inaccurate reference to the test for striking out under
CPR 3.4.

Default judgment is set aside and the matter progresses towards trial. Counsel is
instructed on behalf of Sadid and she takes the view that the seriousness of
Sadid’s injuries and the uncertainty as to his prognosis means that he should
seek provisional damages; however, although the facts surrounding the injuries
and prognosis have been set out in the Particulars of Claim and attached medical
report, provisional damages have not been mentioned expressly in either the
Particulars of Claim or the Claim Form.

4. What is the best advice to give Sadid as to whether, and if so how, he can
include a claim for provisional damages?

[A] He must apply to amend the Claim Form in order to claim the provisional
damages.

[B] As provisional damages have not been specifically claimed in the Claim
Form or Particulars of Claim he cannot now claim them.

[C] No action is necessary because the court may grant any remedy to which
the claimant is entitled even if that remedy is not specified in the claim
form or particulars of claim.

[D] He must apply to amend the Particulars of Claim in order to claim the
provisional damages.

[D] is the best answer as if provisional damages are claimed a statement to that effect must
be included in the particulars of claim (CPR 16.4(1)(d)).

A is wrong as there is no specific requirement for provisional damages to be pleaded in the

claim form. See CPR r. 16.3. B is correct but it is not the best answer as the defect can be
cured by amendment. C is not correct. See CPR 16.2(5) which states that the court may
grant any remedy to which the claimant is entitled even if that remedy is not specified in the
claim form. Particulars of claim are not referred to in this rule and as such it does not
supersede CPR 16.4(1)(d).